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THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


Comparative  Legal   Philosophy 


THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


Edited  by  a  Committee  of  the 
ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


INTRODUCTION  TO  THE  SCIENCE  OF  LAW.  By  KARL 
GAREIS  of  the  University  of  Munich.  Translated  by  ALBERT 
KOCOUREK  of  Northwestern  University. 

THE  WORLD'S  LEGAL  PHILOSOPHIES.  By  FRITZ  BEROLZ- 
HEIMER  of  Berlin.  Translated  by  RACHEL  S.  JASTROW. 

COMPARATIVE  LEGAL  PHILOSOPHY,  applied  to  Legal 
Institutions.  By  LUIGI  MIRAGLIA  of  the  University  of 
Naples.  Translated  by  JOHN  LISLE  of  the  Philadelphia  Bar. 

GENERAL  THEORY  OF  LAW.  By  N.  M.  KORKUNOV  of  the 
University  of  St.  Petersburg.  Translated  by  W.  G.  HASTINGS 
of  the  University  of  Nebraska. 

LAW  AS  A  MEANS  TO  AN  END.  By  RUDOLF  VON  IHERING 
of  the  University  of  Berlin.  Translated  by  ISAAC  HUSIK  of 
the  University  of  Pennsylvania. 

MODERN  FRENCH  LEGAL  PHILOSOPHY.  By  A.  FOUILLEE, 
J.  CHARMONT,  L.  DUGUIT  and  R.  DEMOGUE  of  the  Uni- 
versities of  Paris,  Montpellier,  Bordeaux  and  Lille.  Trans- 
lated by  MRS.  F.  W.  SCOTT  and  JOSEPH  P.  CHAMBERLAIN. 

SCIENCE  OF  LEGAL  METHOD,  SELECT  ESSAYS.  By 
Various  Writers. 

THE  FORMAL  BASES  OF  LAW.  By  G.  DEL  VECCHIO  of  the 
University  of  Bologna.  Translated  by  JOHN  LISLE  of  the 
Philadelphia  Bar. 

THE  PHILOSOPHY  OF  LAW.  By  JOSEF  KOHLER  of  the  Uni- 
versity of  Berlin.  Translated  by  ADALBERT  ALBRECHT. 


COMPARATIVE 

LEGAL  PHILOSOPHY 

Applied  to  Legal  Institutions 

BY 
LUIGI  MIRAGLIA 

Professor  of  the  Philosophy  of  Law  in  the  University  of  Naples 


TRANSLATED  FROM  THE  ITALIAN  BY 

JOHN   LISLE 

of  the  Philadelphia  Bar 


WITH  AN  INTRODUCTION  BY 

ALBERT  KOCOUREK 
Lecturer  on  Jurisprudence  in  Northwestern  University 


tfmit 
THE  MAGMILLAN  COMPANY 

1921 

All  rights  reserved 


COPYRIGHT,  1912 
BY  THE  BOSTON  BOOK  COMPANY 


GENERAL    INTRODUCTION   TO 
THE  SERIES 

BY  THE  EDITORIAL  COMMITTEE 


"Until  either  philosophers  become  kings,"  said  Soc- 
rates, "or  kings  philosophers,  States  will  never  succeed 
in  remedying  their  shortcomings."  And  if  he  was 
loath  to  give  forth  this  view,  because,  as  he  admitted, 
it  might  "sink  him  beneath  the  waters  of  laughter  and 
ridicule,"  so  to-day  among  us  it  would  doubtless  resound 
in  folly  if  we  sought  to  apply  it  again  in  our  own  field 
of  State  life,  and  to  assert  that  philosophers  must  be- 
come lawyers  or  lawyers  philosophers,  if  our  law  is 
ever  to  be  advanced  into  its  perfect  working. 

And  yet  there  is  hope,  as  there  is  need,  among  us  to-day, 
of  some  such  transformation.  Of  course,  history  shows 
that  there  always  have  been  cycles  of  legal  progress, 
and  that  they  have  often  been  heralded  and  guided  by 
philosophies.  But  particularly  there  is  hope  that  our 
own  people  may  be  the  generation  now  about  to  exem- 
plify this. 

There  are  several  reasons  for  thinking  our  people 
apt  thereto.  But,  without  delaying  over  the  grounds 
for  such  speculations,  let  us  recall  that  as  shrewd  and 
good-natured  an  observer  as  DeTocqueville  saw  this 
in  us.  He  admits  that  "in  most  of  the  operations  of 
the  mind,  each  American  appeals  to  the  individual  exer- 
cise of  his  own  understanding  alone;  therefore  in  no 
country  in  the  civilized  world  is  less  attention  paid  to 
philosophy  than  in  the  United  States."  But,  he  adds, 
"the  Americans  are  much  more  addicted  to  the  use  of 
general  ideas  than  the  English,  and  entertain  a  much 


iv  GENERAL  INTRODUCTION 

greater  relish  for  them."  And  since  philosophy  is, 
after  all,  only  the  science  of  general  ideas  —  analyzing, 
restating,  and  reconstructing  concrete  experience  — 
we  may  well  trust  that  (if  ever  we  do  go  at  it  with  a  will) 
we  shall  discover  in  ourselves  a  taste  and  high  capacity 
for  it,  and  shall  direct  our  powers  as  fruitfully  upon  law 
as  we  have  done  upon  other  fields. 

Hitherto,  to  be  sure,  our  own  outlook  on  juristic 
learning  has  been  insular.  The  value  of  the  study  of 
comparative  law  has  only  in  recent  years  come  to  be 
recognized  by  us.  Our  juristic  methods  are  still  primi- 
tive, in  that  we  seek  to  know  only  by  our  own  experi- 
ence, and  pay  no  heed  to  the  experience  of  others. 
Our  historic  bond  with  English  law  alone,  and  our  con- 
sequent lack  of  recognition  of  the  universal  character 
of  law  as  a  generic  institution,  have  prevented  any  wide 
contact  with  foreign  literatures.  While  heedless  of 
external  help  in  the  practical  matter  of  legislation,  we 
have  been  oblivious  to  the  abstract  nature  of  law. 
Philosophy  of  law  has  been  to  us  almost  a  meaningless 
and  alien  phrase.  "All  philosophers  are  reducible  in 
the  end  to  two  classes  only:  utilitarians  and  f utilitari- 
ans," is  the  cynical  epigram  of  a  great  wit  of  modern 
fiction.1  And  no  doubt  the  philistines  of  our  profession 
would  echo  this  sarcasm. 

And  yet  no  country  and  no  age  have  ever  been  free 
(whether  conscious  of  the  fact  or  not)  from  some  drift 
of  philosophic  thought.  "In  each  epoch  of  time,"  says 
M.  Leroy,  in  a  brilliant  book  of  recent  years,  "there  is 
current  a  certain  type  of  philosophic  doctrine  —  a  phil- 
osophy deep-seated  in  each  one  of  us,  and  observable 
clearly  and  consciously  in  the  utterances  of  the  day  — 
alike  in  novels,  newspapers,  and  speeches,  and  equally 

1  M.  Dumaresq,  in  Mr.  Paterson's  "The  Old  Dance  Master." 


GENERAL  INTRODUCTION  v 

in  town  and  country,  workshop  and  counting-house." 
Without  some  fundamental  basis  of  action,  or  theory 
of  ends,  all  legislation  and  judicial  interpretation  are 
reduced  to  an  anarchy  of  uncertainty.  It  is  like  mathe- 
matics without  fundamental  definitions  and  axioms. 
Amidst  such  conditions,  no  legal  demonstration  can  be 
fixed,  even  for  a  moment.  Social  institutions,  instead 
of  being  governed  by  the  guidance  of  an  intelligent  free 
will,  are  thrown  back  to  the  blind  determinism  of  the 
forces  manifested  in  the  natural  sciences.  Even  the 
phenomenon  of  experimental  legislation,  which  is  pecu- 
liar to  Anglo-American  countries,  cannot  successfully 
ignore  the  necessity  of  having  social  ends. 

The  time  is  ripe  for  action  in  this  field.  To  quote  the 
statement  of  reasons  given  in  the  memorial  presented  at 
the  annual  meeting  of  the  Association  of  American  Law 
Schools  in  August,  1910:  — 


The  need  of  the  series  now  proposed  is  so  obvious  as  hardly  to 
need  advocacy.  We  are  on  the  threshold  of  a  long  period  of  construc- 
tive readjustment  and  restatement  of  our  law  in  almost  every  depart- 
ment. We  come  to  the  task,  as  a  profession,  almost  wholly  untrained 
in  the  technic  of  legal  analysis  and  legal  science  in  general.  Neither 
we,  nor  any  community,  could  expect  anything  but  crude  results 
without  thorough  preparation.  Many  teachers,  and  scores  of 
students  and  practitioners,  must  first  have  become  thoroughly 
familiar  with  the  world's  methods  of  juristic  thought.  As  a  first 
preparation  for  the  coming  years  of  that  kind  of  activity,  it  is  the 
part  of  wisdom  first  to  familiarize  ourselves  with  what  has  been 
done  by  the  great  modern  thinkers  abroad  —  to  catch  up  with  the 
general  state  of  learning  on  the  subject.  After  a  season  of  this,  we 
shall  breed  a  family  of  well-equipped  and  original  thinkers  of  our 
own.  Our  own  law  must,  of  course,  be  worked  out  ultimately  by 
our  own  thinkers;  but  they  must  first  be  equipped  with  the  state 
of  learning  in  the  world  to  date. 

How  far  from  "unpractical"  this  field  of  thought  and  research 
really  is  has  been  illustrated  very  recently  in  the  Federal  Supreme 
Court,  where  the  opposing  opinions  in  a  great  case  (Kuhn  v.  Fair- 


vi  GENERAL  INTRODUCTION 

mont  Coal  Co.)  turned  upon  the  respective  conceptions  of  "law" 
in  the  abstract,  and  where  Professor  Gray's  recent  work  on  "The 
Nature  and  Sources  of  the  Law"  was  quoted,  and  supplied  direct 
material  for  judicial  decision. 

Acting  upon  this  memorial,  the  following  resolution 
was  passed  at  that  meeting :  — 

That  a  committee  of  five  be  appointed  by  the  president,  to  arrange 
for  the  translation  and  publication  of  a  series  of  continental  master- 
works  on  jurisprudence  and  philosophy  of  law. 

The  committee  spent  a  year  in  collecting  the  material. 
Advice  was  sought  from  a  score  of  masters  in  the  leading 
universities  of  France,  Germany,  Italy,  Spain,  and  else- 
where. The  present  series  is  the  result  of  these  labors. 

In  the  selection  of  this  series,  the  committee's  pur- 
pose has  been,  not  so  much  to  cover  the  whole  field  of 
modern  philosophy  of  law,  as  to  exhibit  faithfully  and 
fairly  all  the  modern  viewpoints  of  any  present  impor- 
tance. The  older  foundation-works  of  two  generations 
ago  are,  with  some  exceptions,  already  accessible  in 
English  translation.  But  they  have  been  long  sup- 
planted by  the  products  of  newer  schools  of  thought 
which  are  offered  in  this  series  in  their  latest  and  most 
representative  form.  It  is  believed  that  the  complete 
series  will  represent  in  compact  form  a  collection  of 
materials  whose  equal  cannot  be  found  at  this  time  in 
any  single  foreign  literature. 

The  committee  has  not  sought  to  offer  the  final 
solution  of  any  philosophical  or  juristic  problems;  nor 
to  follow  any  preference  for  any  particular  theory  or 
school  of  thought.  Its  chief  purpose  has  been  to  present 
to  English  readers  the  most  representative  views  of  the 
most  modern  writers  in  jurisprudence  and  philosophy 
of  law.  The  series  shows  a  wide  geographical  represen- 
tation; but  the  selection  has  not  been  centered  on  the 


GENERAL  INTRODUCTION  vii 

notion  of  giving  equal  recognition  to  all  countries. 
Primarily,  the  desire  has  been  to  represent  the  various 
schools  of  thought;  and,  consistently  with  this,  then  to 
represent  the  different  chief  countries.  This  aim,  how- 
ever, has  involved  little  difficulty;  for  Continental 
thought  has  lines  of  cleavage  which  make  it  easy  to  rep- 
resent the  leading  schools  and  the  leading  nations  at 
the  same  time.  Germany,  for  example,  is  represented 
in  modern  thought  by  a  preponderant  metaphysical 
influence.  Italy  is  primarily  positivist,  with  subordinate 
German  and  English  influences.  France  in  its  modern 
standpoint  is  largely  sociological,  while  making  an  effort 
to  assimilate  English  ideas  and  customs  in  its  theories 
of  legislation  and  the  administration  of  justice.  Spain, 
Austria,  Switzerland,  Hungary,  are  represented  in  the 
Introductions  and  the  shorter  essays;  but  no  country 
other  than  Germany,  Italy,  and  France  is  typical  of  any 
important  theory  requiring  additions  to  the  scope  of 
the  series. 

To  offer  here  an  historical  introduction,  surveying  the 
various  schools  of  thought  and  the  progress  from  past 
to  present,  was  regarded  by  the  committee  as  unneces- 
sary. The  volumes  of  Dr.  Berolzheimer  and  Professor 
Miraglia  amply  serve  this  purpose;  and  the  introductory 
chapter  of  the  latter  volume  provides  a  short  summary 
of  the  history  of  general  philosophy,  rapidly  placing 
the  reader  in  touch  with  the  various  schools  and  their 
standpoints.  The  series  has  been  so  arranged  (in  the 
numbered  list  fronting  the  title  page)  as  to  indicate  that 
order  of  perusal  which  will  be  most  suitable  for  those  who 
desire  to  master  the  field  progressively  and  fruitfully. 

The  committee  takes  great  pleasure  in  acknowledg- 
ing the  important  part  rendered  in  the  consummation 
of  this  project,  by  the  publisher,  the  authors,  and  the 
translators.  Without  them  this  series  manifestly  would 
have  been  impossible. 


viii  GENERAL  INTRODUCTION 

To  the  publisher  we  are  grateful  for  the  hearty  spon- 
sorship of  a  kind  of  literature  which  is  so  important  to 
the  advancement  of  American  legal  science.  And  here 
the  Committee  desires  also  to  express  its  indebtedness 
to  Elbert  H.  Gary,  Esq.,  of  New  York  City,  for  his 
ample  provision  of  materials  for  legal  science  in  the 
Gary  Library  of  Continental  Law  (in  Northwestern 
University).  In  the  researches  of  preparation  for  this 
Series,  those  materials  were  found  indispensable. 

The  authors  (or  their  representatives)  have  cordially 
granted  the  right  of  English  translation,  and  have  shown 
a  friendly  interest  in  promoting  our  aims.  The  com- 
mittee would  be  assuming  too  much  to  thank  these 
learned  writers  on  its  own  behalf,  since  the  debt  is  one 
that  we  all  owe. 

The  severe  labor  of  this  undertaking  fell  upon  the 
translators.  It  required  not  only  a  none  too  common 
linguistic  skill,  but  also  a  wide  range  of  varied  learning 
in  fields  little  travelled.  Whatever  success  may  attend 
and  whatever  good  may  follow  will  in  a  peculiar 
way  be  attributable  to  the  scholarly  labors  of  the  several 
translators. 

The  committee  finds  special  satisfaction  in  having 
been  able  to  assemble  in  a  common  purpose  such  an  array 
of  talent  and  learning;  and  it  will  feel  that  its  own  small 
contribution  to  this  unified  effort  has  been  amply  recom- 
pensed if  this  series  will  measurably  help  to  improve 
and  to  refine  our  institutions  for  the  administration  of 
justice. 


EDITORIAL  COMMITTEE  OF  THE  ASSOCIATION 
OF  AMERICAN  LAW  SCHOOLS 


JOSEPH  H.  DRAKE,  Professor  of  Law,  University  of  Michigan. 
ALBERT  KOCOUREK,    Lecturer  on  Jurisprudence,    Northwestern 

University. 

ERNEST  G.  LORENZEN,  Professor  of  Law,  University  of  Wisconsin. 
FLOYD  R.  MECHEM,  Professor  of  Law,  University  of  Chicago. 
ROSCOE  POUND,  Professor  of  Law,  Harvard  University. 
ARTHUR  W.  SPENCER,  Editor  of  the  Green  Bag,  Boston,  Mass. 
JOHN  H.  WlGMORE,  Chairman,  Professor  of  Law,  Northwestern 

University. 


LIST  OF  TRANSLATORS 

ADALBERT  ALBRECHT,  North  Easton,  Mass.  (Associate  Editor  of 

the  Journal  of  Criminal  Law  and  Criminology). 
JOSEPH    P.    CHAMBERLAIN,    Columbia    University,    New    York, 

N.  Y. 
WILLIAM  G.  HASTINGS,   Lincoln,  Neb.   (Dean  of  the  Faculty  of 

Law,  State  University.) 
ROBERT  L.  HENRY,  JR.,  Grand  Forks,  N.  D.   (Professor  of  Law  in 

the  State  University). 
ISAAC   HUSIK,  Philadelphia,    Pa.   (Lecturer  on  Philosophy  in  the 

University  of  Pennsylvania). 
MRS.  RACHEL  SZOLD  JASTROW,  Madison,  Wis. 
ALBERT  KOCOUREK,  Chicago,  111.  (of  the  Editorial  Committee). 
JOHN  LISLE,  Philadelphia,  Pa.  (of  the  Philadelphia  Bar). 
MRS.  ETHEL  FORBES  SCOTT,  State  University,  Urbana,  111. 
FREDERIC    S.  SPIEGEL,  Cincinnati,  Ohio  (Judge  of  the  Superior 

Court). 


INTRODUCTION  TO  THE  TRANSLATED 
VOLUME 

BY  ALBERT  KocouREK1 


Now  that  we  are  having  placed  before  us,  in  an 
approachable  form,  the  best  modern  materials  of  the 
European  continent  on  philosophy  of  law,  it  will  be 
possible  for  us  to  ascertain,  at  first  hand,  what  of  value 
there  may  be  in  this  kind  of  learning. 

Philosophy  of  law,  if  not  wholly  an  alien  phrase,  is, 
at  least  for  us,  an  obscure  collocation  of  words.  In  a 
vague  apprehension  of  its  content  and  limits,  we  asso- 
ciate with  it  all  that  is  sublimely  elevated  and 
fundamentally  basic  in  our  legal  life  —  and  pass  on.  It 
resembles  the  anthropomorphic  God  of  the  Hebrew 
Scriptures.  Residing  at  a  distance,  it  influences  our 
everyday  concerns  with  a  power  too  remote,  and  too 
mysterious,  to  enter  into  our  practical  cause-and-effect 
ideas.  It  is  to  the  practical  mind  at  once  too  lofty, 
and  too  metaphysical,  to  coordinate  with  the  median 
plane  of  experience. 

There  are  even  those  among  us  who,  seeing  only  the 
undeniable  elements  of  brute  force  and  material  egoism 
within  life,  and  the  resultant  expression  of  an  organized 
social  power  which  restrains  the  clashing  and  warring 
instincts  of  a  herd  of  human  wolves,  deny  that  there  is 
any  philosophy  of  law,  and  seek  the  ultimate  notion 
of  the  law  in  the  will  of  the  sovereign.  This  denial 
(without  pausing  to  find  what  becomes  of  that  search 
after  the  finalities  of  truth  which  has  been  pursued 

1  Lecturer  on  Jurisprudence  in  Northwestern  University,  Chicago. 


xii  INTRODUCTION 

from  the  beginning  of  history)  carelessly  brushes  aside 
the  entire  structure  of  philosophy  of  law  as  an  unneces- 
sary and  unreal  creation  —  an  invention  which  has  no 
sensible  contact  with  the  political  world  founded  on  com- 
mand and  obedience,  and  no  existence  therefore  in  rela- 
tion to  anything  within  the  compass  of  our  experience. 

But  we  have  not  been  either  more  or  less  fortunate 
than  other  countries  in  our  traditions  and  our  inherited 
ideas.  Our  racial  sense  of  immediacy  —  the  immediacy 
which  has  gripped  up  to  the  exploitation  of  the  direct, 
the  special,  the  local,  and  the  concrete  in  life  —  has  only 
had  the  effect  of  temporarily  staying  the  progress  of 
philosophic  thought.  Like  other  countries,  we  too  have 
been  caught  between  the  nether  millstone  of  a  form  of 
political  materialism  which  disavows  everything  but  the 
imperative  element  in  law,  and  the  upper  stone  of  a 
form  of  juridical  idealism  which  claims  too  much. 

Until  the  middle  of  the  19th  century,  the  notion  of 
natural  law,  under  its  variety  of  disguises  and  protean 
shapes,  remained  ascendant  as  the  final  hypothesis  of 
legal  truth.  This  natural  law  was  thought  to  consist 
of  certain  fixed  and  universal  principles  adaptable  for 
all  times  to  every  system  of  law  by  direct  incorporation, 
and  applicable  to  the  concretest  expression  of  legal 
standards.  This  unmitigated  form  of  natural  law  has 
been  abandoned  wherever  philosophy  of  law  has  become 
a  discipline  of  thought.  Its  elimination  has  not  been 
effected,  however,  without  a  struggle.  In  the  language 
of  Windscheid  it  is  an  "ancient,  never-ending  dream  of 
mankind."1 


1  On  the  continent,  its  essential  idea  has  again  been  vigorously  pro- 
claimed, as  a  natural  law  "with  a  variable  content,"  by  the  neo- Kantian 
school,  chiefly  through  Stammler  in  Germany,  Del  Vecchio  in  Italy, 
and  Charmont  in  France,  all  of  whom  will  be  represented  in  this  series. 
This  modified  doctrine  is  not  to  be  confused,  however,  with  the  unre- 
lenting natural  law  of  the  eighteenth  century. 


INTRODUCTION  xiii 

It  is  curious  to  observe  the  dualistic  phenomenon  of 
practicing  an  imperative  theory  of  law,  and  believing 
in  a  metaphysical  law  of  nature.  Nourished  on  the 
pseudo-philosophy  of  Blackstone,  the  notion  of  an 
unalterable  standard  of  justice  has  entered  the  very 
stronghold  of  the  law  in  the  English-speaking  countries, 
and  finds  its  strongest  support  among  our  practical 
lawyers  and  judges,  who  might  be  expected  to  be  the 
first  to  deny  that  there  is  any  philosophy  of  law.  Jus- 
tice and  its  companion  term,  Reason,  have  long  been 
established  as  the  inviolable  and  transcendent  meta- 
physical arcana  of  positive  law.  Judicial  decisions  and 
the  traditions  of  legal  speech  are  full  of  the  jargon  of 
reason  and  justice.  The  changes  that  have  been  rung 
on  them  in  legal  phrase  have  all  but  exhausted  the  poetic 
possibilities  of  our  language;  but  the  inquiry  is  not 
pushed  to  determine  their  nature  or  their  scope.  They 
are  idols  to  be  revered  upon  their  pedestals,  but  not 
designed  for  other  use.  That  this  judgment  may  not 
appear  as  without  basis,  let  the  following  typical  char- 
acterization (taken  at  random)  speak  as  the  declaration 
of  one  of  the  ablest  and  most  practical  of  judges;  it 
asserts  of  justice  that  "Truth  is  its  handmaid,  Freedom 
is  its  child,  Safety  walks  in  its  steps,  Victory  follows  in 
its  train;  it  is  the  brightest  emanation  from  the  Gospel, 
it  is  the  attribute  of  God."  A  thing  so  deserving  of 
praise  should  not  be  obscured.  It  should  be  (as  Berolz- 
heimer  says  of  philosophy  of  law)  not  an  appendix 
to  the  law,  but  rather  a  prospectus. 

Our  literature  is  not  destitute  of  anticipations,  at 
least,  of  legal  philosophy.  We  had  at  one  time  the  dog- 
matic conception  that  justice  is  the  word  of  God.  That 
solution  having  been  found  unworkable  in  an  unbe- 
lieving world,  resort  was  had  to  the  imperative  idea  that 
justice  is  the  command  of  the  sovereign.  We  are  still 


xiv  INTRODUCTION 

swayed  by  the  rationalistic  conception  that  there  is  an 
inherent  standard  of  justice  as  ever-present  and  inflexible 
as  the  law  of  gravitation  and  capable  of  approximation 
by  the  positive  law.  On  the  other  hand,  we  have  also 
had  the  historical  explanation  of  law  chiefly  through 
the  writings  of  Sir  Henry  S.  Maine.  Finally,  Professor 
T.  H.  Green  has  given  us  a  neo-Hegelian  insight  into 
legal  institutions,  and  Professor  Pound  has  shown  us 
the  value  of  the  sociological  point  of  view.  This  enum- 
eration touches,  perhaps,  all  the  well-recognized  aspects 
of  the  nature  and  function  of  law.  And  yet  we  have  no 
philosophy  of  law.  Our  legal  philosophy  is  fragmen- 
tary, occasional,  and  unread.  It  would  be  strange 
if  we  should  first  learn  to  estimate  the  position  of 
Bentham,  Maine,  and  Spencer  through  the  judgment 
of  Italy,  and  yet  this  seems  to  be  the  reasonable 
probability. 

England  and  America  are  slowly,  very  slowly,  coming 
to  realize  that  an  analysis  of  fundamental  legal  ideas, 
and  a  study  of  the  formal  scope  —  the  osseous  tissue  of 
the  corpus  juris  —  are  indispensable  in  a  refined  and 
scientific  administration  of  justice.  The  intolerable 
burden  of  mountains  of  cases  is  compelling  this 
unwilling  belief.  We  cannot,  however,  expect  to  rest 
with  a  mastery  of  the  form  of  the  law;  we  must  investi- 
gate in  a  scientific  way  its  substance,  its  relation  to  life, 
and  all  other  reality,  employing  all  the  aids  that  learning 
can  afford.  We  must  clothe  the  skeleton  of  formal  law 
with  tissues,  and  provide  it  with  organs  that  will  make 
it  fit  for  its  environment  and  its  mission  in  the  scheme 
of  life. 

Law  is  not  a  thing  detached  and  isolated.  It  is  not 
disposed  of  by  pronouncing  a  humanly  conceived  for- 
mula. It  has  an  inherent  relation  to  all  other  facts. 
It  must  therefore  be  studied  in  connection  with  and  as  a 


INTRODUCTION  xv 

part  of  the  combined  reality  of  the  world.  It  cannot 
be  limited  (as  by  Hobbes)  to  the  politically  sovereign 
organization;  its  mission  is  not  understood  by  simple 
reference  to  the  promotion  of  happiness  or  the  suppres- 
sion of  pain ;  nor  its  nature  known  by  pointing  out  its 
similarity  to  language  in  psychological  development.  The 
historical  incidents  of  the  creation  of  law,  the  assembled 
facts  of  legal  evolution,  and  the  accidental  phases  of 
what  law  has  wrought  in  the  history  of  the  world  under 
varying  social  influences,  do  not  touch  the  reality  within. 

If  we  can  go  as  far  as  this,  we  are  prepared  to  believe 
that  the  mere  nature  of  legislation  and  its  interpretation 
do  not  sound  the  depths  of  legal  institutions.  These 
studies  are  the  immediate  tools  of  the  legal  workman, 
but  they  do  not  employ  the  ultimate  forces  of  the  law. 
We  may  have  successful  and  skillful  lawyers  who  know 
nothing  and  seek  nothing  beyond  a  traditional  and 
astute  application  of  legal  rules,  just  as  we  may  have 
useful,  successful,  and  skillful  bricklayers  who  are  not 
burdened  with  any  learning  beyond  the  proper  laying  of 
bricks.  The  hewer  of  wood  and  the  drawer  of  water, 
while  performing  their  necessary  functions  in  the  prog- 
ress of  the  world,  do  not,  however,  by  their  numerical 
preponderance  or  by  the  admitted  necessity  and  useful 
dignity  of  their  labor,  render  dispensable  (or  at  least 
do  not  make  valueless)  a  knowledge  of  the  organic  unity 
of  the  world,  the  facts  of  which  are  stated  by  the  sciences 
and  explained  by  philosophy. 

The  practical  aspect  of  philosophy  of  law  is  mani- 
fested in  the  two  principal  legal  activities  in  which  the 
human  will  exerts  itself  as  the  sole  or  at  least  as  a  con- 
tributory force;  that  is  to  say,  in  the  making  of  legal 
standards,  and  in  the  application  of  legal  standards. 

I.  With  respect  to  the  creation  of  law,  it  is  self- 
apparent  that  legislation  cannot  be  based  on  mere  caprice, 


xvi  INTRODUCTION 

conjecture,  or  fancy,  and  at  the  same  time  be  regarded 
as  an  enlightened  cultural  activity.  In  the  words  of 
Ihering,  the  object  is  the  creator  of  the  law,  or  in  the 
thought  of  Socrates,  life  is  to  be  considered  as  a  system 
of  ends. 

Several  choices  of  viewpoint  are  conceivably  present 
in  the  creation  of  legal  standards.  First,  we  may 
supinely  yield  to  a  blind  determinism.  We  may  regard 
the  making  of  legal  standards  as  the  mechanical  expres- 
sion of  inherent  forces  whose  fixed  causal  chain  involves 
even  the  processes  of  the  mind,  and  which  we  are  impo- 
tent to  control,  and  could  only  ineffectively  seek  to 
understand.  This  standpoint  is  reminiscent  of  the 
conception  of  the  Historical  School  which  thinks  of 
law  as  the  unconscious  unfoldment  of  the  spirit  of  the 
people. 

Secondly,  we  may  regard  legislation  as  the  product 
of  a  conscious  egoism  —  the  varying  phenomenon  of  a 
conflict  among  the  asserted  interests  within  the  State. 
This  view,  by  reason  of  its  proximate  relation  to  the 
motives  most  strikingly  apparent  in  life,  finds  a  ready 
acceptation,  and  perhaps  sums  up  the  average  man's 
conception  of  the  nature  of  legal  development.  No 
doubt,  also,' it  contains  an  obvious  element  of  objective 
truth.  This  standpoint  may  admit  of  a  modification 
allowing  the  intervention  of  a  predominant  ethical  ele- 
ment, realized  in  a  formula  such  as  that  of  Bentham, 
that  every  institution  and  every  action  must  be  judged 
according  to  its  tendency  to  promote  happiness  or  arrest 
pain;  or  some  similar  and  equally  futile  mechanical  or 
arithmetical  attempt  to  find  a  solution  of  the  complex 
problems  of  human  existence. 

Or  thirdly,  the  conscious  process  of  legislation  may 
proceed  experimentally,  without  an  underlying  formula, 
and  without  the  aid  of  the  social  sciences,  and  with  no 


INTRODUCTION  xvii 

crystallized  idea  of  what  social  end  is  to  be  attained. 
This  indeterminism  of  legislative  method  and  legislative 
purpose  can  lead  only  to  the  most  incongruous  social 
results.  Only  after  the  effects  are  seen  does  it  know 
what  legislation  may  accomplish.  It  is  the  unplanned 
labor  of  children  playing  in  the  sand,  who  lay  out  now 
one  pattern  and  then  another  without  reason  or  purpose. 

Fourthly,  we  find  the  causal  explanation  of  legal 
institutions.  This  looks  to  whole  domain  of  empiristic 
knowledge,  and  especially  to  biology,  psychology,  and 
economics.  This,  the  sociological  standpoint,  goes  be- 
yond a  mere  political  or  historical  interpretation  of  law. 
The  causal  conception  provides  not  only  a  method,  but 
also  an  explanation.  Its  tools  are  experiment,  observa- 
tion, and  induction  —  rarely,  if  ever,  deduction.  It 
seeks  to  provide  and  employ,  by  conscious  impulse,  the 
scientific  materials  for  a  legislation  that  will  accomplish 
definite  and  predetermined  social  results.  It  looks  for 
its  generalizations  of  social  destiny  to  the  objective  and 
sensible  world.  As  an  explanation,  it  represents  the 
law  as  an  evolutionary  growth,  adapting  itself  from  age 
to  age  to  variations  in  social  conditions  and  responding 
to  the  ideals  of  the  time.  Causality  does  not  involve 
the  blind,  unconscious,  or  mechanical  unfoldment  of 
social  institutions  implied  in  a  Darwinistic  evolution. 
The  element  of  hazard  is  present,  but  the  voluntary  ele- 
ment persistently  overrides  the  spontaneous  factor  of 
growth.  This  view  of  legal  institutions  is  one  which 
may  confidently  be  expected  to  find  among  us  an  approv- 
ing reception  when  it  is  better  understood.  "The  Eng- 
lish do  not  care  to  shoot  in  the  air,"  says  Mr.  Hoffding. 
"They  prefer  to  hit  the  mark  even  should  the  roar  of  their 
artillery  be  less  imposing." 

That  a  method  so  constructively  helpful  and  so  con- 
sonant with  our  close-to-the-ground  mental  inclinations 


xviii  INTRODUCTION 

should  have  been  almost  wholly  neglected  illustrates 
the  persistence  of  ideas.  We  have  become  so  much 
attached  to  the  natural  law  conception  of  a  monad 
theory  of  justice  operating  under  an  official  guidance, 
that  we  have  missed  the  notion  of  law  as  a  social  product. 
We  have  likewise  resolved  all  its  possibilities  into  an 
exclusively  individualistic  legal  purpose,  which  is  becom- 
ing more  and  more  unworkable,  and  which  is  accordingly 
exerting  heavy  strains  on  our  fundamental  legal  theories. 

Lastly,  there  remains  another  aspect  of  legal  develop- 
ment which  bears  the  name  of  Finalism.  It  assumes 
an  ultimate  destiny  in  human  institutions,  projected 
from  the  beginning  of  time.  From  this  point  of  view, 
legislation  is  an  instrument  for  the  attainment  of  definite, 
concrete,  and  isolated  objects,  which  harmoniously  con- 
form, in  detail,  with  the  aggregate  plan  of  life.  Even 
the  acceptance  of  the  Hegelian  formula  that  "all  that  is 
real  is  rational"  does  not  exclude  human  effort  and  the 
actual  manifestation  of  a  real  will  as  to  the  particular 
aspects  of  social  life. 

The  objective  world  may  be  said  to  consist  of  special 
realities.  These  isolated  facts  must  be  dealt  with  in  an 
isolated  way  by  the  temporal  and  local  forces  under 
our  control  in  the  form  of  commands  and  prohibitions  — 
laws,  standards  of  conduct  —  applicable  to  the  various 
concrete  conditions  of  life.  Man's  function  in  the 
world  is  not  of  less  importance,  even  though  we  admit 
that  the  total  reality  transcends  his  understanding,  and 
is  beyond  his  control.  His  will  is  not  less  real  because 
the  world  moves  on  by  a  constant  progression.  We  may 
even  admit  (without  violence  to  anything  conceived 
to  be  practical)  that  the  unified  process  expresses  rea- 
son, and  that  man's  activity  is  only  relative,  and  that 
this  activity  being  relative,  frequently  opposes,  tempo- 
rarily at  least,  the  general  current  of  cosmic  evolution. 


INTRODUCTION  xix 

Our  interest  in  the  universal  and  our  efforts  to  mark 
out  with  our  finite  intelligence,  from  the  moving  shadows 
on  the  wall  of  objective  appearance,  the  full  meaning 
of  the  reality  passing  behind  us,  lies  in  our  relation  to 
the  absolute  and  the  desirability  that  the  particular 
under  our  control  shall  not  be  in  Conflict  with  the 
universal. 

II.  The  application  of  law  is  the  second  point  of  prac- 
tical contact  between  legal  institutions  and  philosophy 
of  law.  It  may,  perhaps,  here,  be  sufficient  to  point 
out  that  mere  words  cannot  circumscribe  the  infinite 
variations  of  life.  The  permutations  of  conduct  are 
not  to  be  reduced  to  a  set  of  words,  or  to  any  number 
of  sets  of  words.  The  legal  rule  applied  in  a  special 
and  concrete  case  may  arise  from  another  rule  (a  prin- 
ciple) of  higher  generic  order,  but  the  latter,  being  neces- 
sarily abstract,  cannot  nourish  a  fruitful  consequence 
without  a  spirit.  Every  legal  system  has  its  own  soul. 
The  spirit  of  legislation,  and  its  relation  to  the  totality 
of  knowledge,  cannot  be  adequately  understood  by  the 
culminating  generalizations  derived  from  an  induction 
of  legal  rules.  The  essential  necessity  of  philosophy  of 
law  to  attain  this  completion  of  thought  suggests  itself, 
without  any  manner  of  resort  to  that  species  of  philoso- 
phy of  law  which  has  disparagingly  been  called 
speculative. 

Even  that  vague  idea  of  ultimate  legal  principle,  which 
is  always  current,  reaches  out  helplessly  into  the  ocean 
of  philosophic  idea,  and  manages  always  to  attach  itself 
to  one  of  those  islands  of  foam  which  are  called  reason, 
justice,  or  truth.  In  the  most  highly  developed  legal 
systems  the  province  of  law  (legislation)  never  com- 
pletely covers  the  territory  of  fact.  Something  must 
always  be  left  to  discretion,  and  the  present  tendency 
seems  to  be  even  in  the  direction  of  extending  the  scope 


xx  INTRODUCTION 

of  discretion  or  fact,  as  against  the  domain  of  mere 
verbal  formalism,  which  frequently  works  counter  to 
the  very  objects  which  may  be  assumed  to  be  sought. 
The  discretion  to  be  employed  must  be  a  discretion  which 
is  in  harmonious  accord  with  all  the  facts  and  tendencies 
of  life.  It  must  be  a  discretion  with  an  end,  otherwise 
it  becomes  either  a  chaos  of  vacillation  and  imperma- 
nency,  or  a  dominion  of  arbitrary  formalism. 

A  recent  writer1  comments  on  the  uncertainties  of 
philosophy  of  law.  In  truth,  however,  these  conflicts 
are  much  less  serious  than  they  superficially  appear. 
It  is  true  that  we  have  a  school  which  seeks  to  find  the 
truth  from  within,  that  is  to  say,  subjectively.  We 
have  another  that  looks  wholly  to  the  objective  world. 
Then  again  there  are  varieties  of  standpoint,  which  in 
one  way  and  another  combine  the  subjective  and  objec- 
tive viewpoints.  There  are  indeed  these  differences  of 
method  and  conflicts  of  explanation.  But  there  is  essen- 
tial agreement  among  all  schools  of  philosophy  as  to 
those  things  within  the  purview  of  our  mental  powers, 
and  as  to  things  of  interest  to  us  here  and  now.  The 
problem  of  the  validity  of  knowledge  may  always  be 
with  us,  and  the  ultimate  reality  may  perhaps  always 
be  beyond  us;  but  these  foundations  of  controversy,  and 
these  allurements  to  lead  on  our  aspirations,  argue 
nothing  against  the  effort  to  unify  and  coordinate  the 
isolated  particulars  of  our  common  sense.  All  modern 
philosophy  accepts  the  sciences.  It  accepts  the  facts 
of  life  as  they  are  understood  by  the  average  man. 
But  it  goes  beyond  the  mere  fact  to  the  internal  relation 
of  all  facts  to  each  other.  It  is  often  "taken  for  granted 
that  when  you  entered  a  philosophic  class-room  you  had 
to  open  relations  with  a  universe  entirely  distinct  from 

1G.  Aillet,  in  "Revue  de  Metaphysique  et  de  Morale,"  March,  1911. 


INTRODUCTION  xxi 

the  one  you  left  behind  you  in  the  street";1  and  this 
mistaken  notion  is  difficult  to  eradicate. 

Whether  the  philosophic  method  adopted  is  idealistic 
or  materialistic,  and  whether  it  holds  to  monism,  dual- 
ism, or  pluralism,  is  a  matter  of  little  consequence,  if 
the  results  reached  from  the  different  angles  of  approach 
are  in  substantial  agreement  as  to  the  purpose  of  life. 
The  higher  truth  of  philosophy  does  not  scorn  the  results 
of  the  special  sciences,  and  while  adopting  their  con- 
tributions, discovers  in  them,  by  methods  of  its  own,  a 
relation  and  a  unity  which  they  alone  are  unable  to 
furnish.  We  do  not  discard  religion  simply  because 
there  are  multiform  sects,  creeds,  and  beliefs.  Religion 
and  philosophy  are  twin  activities;  one  seeks  the  highest 
reality  by  faith  and  inspiration,  and  the  other  aspires 
to  the  ultimate  by  demonstration  and  intuition. 

As  there  are  thus  degrees  and  kinds  of  philosophy,  so 
we  may  expect  to  find  different  varieties  of  philosophy 
of  law,  since  philosophy  of  law  is  only  an  aspect  of 
general  philosophy,  and  perhaps  one  of  the  most  impor- 
tant of  its  aspects. 

A  little  reflection  shows  us  that  we  have  positive  law, 
jurisprudence,  legal  sociology  (Rechtspolitik} ,  and  phil- 
osophy of  law  in  an  ascending  series.  Positive  law  is 
the  concrete  law  existing  and  applied  within  the  State; 
jurisprudence  is  the  scientific  study  of  these  concrete 
details  in  a  systematic  arrangement  from  an  abstract 
standpoint;  legal  sociology  goes  beyond  the  positive 
law  and  deals  with  its  relation  to  all  other  social  sciences ; 
while  philosophy  of  law  crowns  the  edifice  of  the  legal 
system,  and  exhibits  its  relation  to  the  totality  of  exist- 
ence. Philosophy  of  law,  to  claim  the  serious  attention 
of  practical  lawyers,  must  have  a  vital,  inherent,  and 

'James:  "Defense  of  Pragmatism." 


xxii  INTRODUCTION 

direct  contact  with  the  practical  administration  of  jus- 
tice. It  must  be  more  than  a  "ballet  of  bloodless  cate- 
gories." Nor  is  it  sufficient  that  it  be  an  auxiliary 
embellishment;  for  its  claim  could  then  be  asserted  no 
further  than  similar  claims  for  divers  other  forms  of 
knowledge  which  may  be  indirectly  useful  and  promotive 
of  a  more  refined  administration  of  justice. 

But  it  is  not  necessary  or  desirable  that  any  system  of 
law  be  dominated  by  a  highly  speculative  and  undemon- 
strable  metaphysic.  We  should  not  expect  a  revelation 
of  absolute  truth.  No  friend  of  philosophy  of  law  will 
go  to  this  length.  No  developed  system  of  law,  how- 
ever, can  afford  to  decline  the  direct  advantages  afforded 
by  philosophy  of  law,  both  in  testing  by  analysis  the 
character  of  our  legal  ideas,  and  in  refining  by  its  syn- 
theses the  functions  of  legal  justice,  and  in  elevating  it 
from  the  stupidity  of  a  mere  experimentalism.  We 
need  not  go  so  far  as  to  deny  everything  that  transcends 
a  positivistic  explanation  of  the  universe.  We  should 
not  expect  of  philosophy  of  law  the  unattainable. 
In  the  language  of  Kohler,  'To  ask  of  the  philosopher  the 
impossible  is  to  compel  him  either  to  offer  a  fantastic 
substitute  for  metaphysics  or  to  renounce  it  altogether." 

The  philosophy  of  law  demanded  by  the  twentieth 
century  is  not  one  that  attempts  to  represent  the  law  as 
it  ought  to  be,  and  is  therefore  always  in  advance  of  the 
fact;  nor  yet  a  philosophy  of  law  that  is  always  too  late 
to  be  of  any  use  in  life.  It  must  relate  to  the  present, 
and  must  be  connected,  inherently  and  organically, 
with  the  problems  of  our  daily  experience.  It  must  be 
drawn  from  the  clouds  into  the  thick  of  life, — not  with 
the  expectation  that  every  man  will  be  a  philosopher, 
but  that  every  man  may  be.  The  hierarchy  of  modern 
specialism  is  not  to  be  disturbed  or  assaulted,  but  directly 
and  consciously  furthered. 


INTRODUCTION  xxiii 

Bentham  and  Austin  have  given  us  in  our  own  tongue 
the  juristic  foundation  for  work  that  must  soon  be  seri- 
ously prosecuted  by  us  if  we  are  to  have  any  relief  from 
the  perpetual  deluge  of  our  oceans  of  cases.  With  the 
presentation  of  this  series,  of  which  this  excellent  book 
of  Professor  Miraglia  is  one  of  the  introductory  volumes, 
Dr.  Wigmore,  who  is  the  author  of  the  idea  and  who  has 
been  the  leading  spirit  in  its  realization,  is  making  it 
possible  for  the  English-speaking  world  to  attain  direct 
knowledge  of  the  foundations  for  real  legal  thought  in 
the  large  substantive  problems  common  to  every  system 
of  law.  The  conception  of  such  a  series  was  a  bold  one, 
and  it  is  only  to  be  feared  that  it  may  be  many  years 
before  we  are  prepared  fully  to  appreciate  its  true  value. 
It  may,  however,  reasonably  be  hoped  that  this  notable 
addition  to  our  equipment  of  knowledge  will  plant  the 
seed  that  will  (if  not  in  this,  at  least  in  some  other  gen- 
eration) grow  into  a  cultural  harvest,  and  thus  most 
fitly  and  acceptably  honor  the  scholarly  mind  that  con- 
ceived its  purpose.  It  is  not  unlikely  that  this  series 
of  books  will  produce  a  result  perhaps  entirely  un- 
reckoned,  in  stimulating  an  interest  in  general  philosophy. 
If  this  comes  to  pass,  a  cobwebbed  academic  highway 
will  owe  something  more  than  politeness  to  the  mere 
jurist. 

Germany  is  looked  upon  as  the  seat  of  the  decisive 
conflicts  in  philosophy  of  law;  but  the  thinkers  of  Ger- 
many have  perhaps  been  too  near  the  clamor  of 
battle  to  give  us  an  account  of  the  struggle  for  a  Phil- 
osophy of  Law  free  from  the  color  of  strong  partisan 
bias.  The  presentation  of  this  treatise  at  this  point 
in  the  series,  while  determined  by  the  value  of  the  work 
itself,  is  secondarily  a  tribute  to  the  country  from 
which  it  emanates.  When  philosophy  of  law  was  dead 
in  all  the  rest  of  the  world,  Italy,  the  land  of  Vico, 


xxiv  INTRODUCTION 

Spaventa,  Romagnosi,  and  Vanni,  the  country  which 
gave  us  in  the  Corpus  Juris  the  greatest  historical 
monument  of  private  law — Italy  alone  nourished  its 
vital  spark  and  spread  its  living  products  over  the  map 
of  Europe. 

Since  Philosophy  of  Law  must  rest  upon  foundations 
sufficient  to  support  universal  knowledge  and  universal 
reality,  Professor  Miraglia  commences  with  a  discussion 
of  the  basic  propositions  of  the  leading  general  philoso- 
phies, treating  the  subject  from  a  critical  and  compara- 
tive standpoint.  With  this  necessary  orientation  accom- 
plished, he  passes  to  the  notion  of  law,  and  treats  in  detail 
the  various  institutions  which  appear  in  society  as  phe- 
nomena of  the  law,  employing  the  same  critical  and 
comparative  method  which  distinguishes  the  general 
part  of  his  book. 

If  it  has  been  necessary  at  the  beginning  to  soar  in 
the  ether  of  pure  reason,  no  just  complaint  can  be  raised, 
since  the  author  has  been  able  to  effect  a  substantial 
landing-place  in  the  midst  of  the  most  tangible  and 
familiar  practical  concerns.  Little  formative  influence 
will  follow  even  a  philosophical  explanation  of  such 
settled  institutions  as  property,  obligations,  and  the 
family.  They  are  coeval  with  the  history  of  civiliza- 
tion, and  have  attained  their  highest  theoretical  form. 
It  is,  however,  true  that  on  the  practical  side  much 
remains  to  be  done  in  adjusting  these  institutions  to 
the  harmony  of  the  world-movement,  and  it  is  here  that 
philosophy  will  exert  its  most  important  service  in  laying 
open  the  internal  relation  of  these  legal  conceptions  to 
the  facts  of  life,  for  their  further  refinement.  But  a 
problem  greater  than  the  mere  explanation  or  simple 
refinement  of  legal  institutions  remains.  Shall  these 
institutions  continue  to  exist,  and  if  not,  what  is  to  take 
their  place? 


INTRODUCTION  xxv 

This  work  is  primarily  a  book  of  instruction,  but  it 
is  not  a  closed  vehicle  for  a  theory.  It  is  true  that  the 
author  has  a  point  of  view,  but  it  is  not  rudely  obtruded 
on  the  readers'  attention  to  the  exclusion  of  all  other 
points  of  view.  Kohler's  great  book  is  plainly  labelled 
a  book  of  instruction,  but  it  is  limited  to  his  own  new 
system  of  philosophy. 

Professor  Miraglia  covers  the  whole  field  not  only  of 
the  subject-matter  of  Philosophy  of  Law  but  also  of 
the  philosophies  bearing  on  this  subject-matter.  As 
might  be  expected,  the  emphasis  is  largely  placed  on 
the  Italian  thinkers,  but  the  available  German,  English, 
and  French  materials  are  treated  with  broad  and  sympa- 
thetic intelligence  and  conspicuous  fairness.  The  wide 
horizon  inspected,  and  the  richness  of  view  attained, 
testify  eloquently  to  the  author's  industry  and  scholar- 
ship. 

Italy  has  been  easily  the  most  prolific  country  of  the 
world  in  Philosophy  of  Law,  and  the  latter  years  have 
witnessed  no  diminution  in  this  literature.  It  may  be 
regarded  as  unfortunate  that  the  time  of  the  last  edition 
of  this  treatise  was  such  that  the  prevailing  currents  of 
thought  in  Italy  could  not  have  been  taken  into  account. 
This  deficiency  will,  however,  be  remedied  by  other 
works  in  this  series. 

To  conclude,  has  Miraglia  any  position  of  his  own  in 
philosophy  of  law,  and  if  so  what  is  it?  It  can  hardly 
be  said  that  there  can  be  extracted  from  this  work  any 
independent  standpoint.  It  is  a  strong  argument  in 
favor  of  this  treatise  that  such  is  the  fact.  A  work  of 
this  extent  could  not,  however,  be  written  without 
manifesting  philosophical  preferences.  Classified  in  a 
word,  Miraglia  is  Vico  modernized.  History  and  meta- 
physics are  reconciled,  and  the  inductive  and  deductive 
methods  are  combined.  Law,  says  Miraglia,  consists 


xxvi  INTRODUCTION 

of  the  true  and  the  certain.  One  is  the  metaphysical 
element;  the  other  is  the  historical  factor.  It  is  at  once 
idea  and  reality.  Just  how  he  unites  them  is  perhaps 
not  entirely  clear.  Does  he  rely  on  the  Kantian  bridge 
between  thought  and  thing,  or  the  Hegelian  principle 
of  identity,  or  is  the  relation  between  idea  and  reality 
simply  treated  in  a  pragmatic  sense? 

Mirgalia's  metaphysics  is  clearly  not  that  of  Hegel 
or  of  the  neo-Hegelian  school,  nor  yet  of  Hume  or 
Kant.  The  Hegelian  metaphysics  is  speculatively  con- 
structive. The  Critical  philosophy,  on  the  other  hand, 
tells  us  that  we  can  know  nothing  about  it  except  that 
it  is  unknown.  Miraglia  inclines  toward  a  scientific 
metaphysics,  but  the  point  of  stress  is  on  the  certain  — 
the  historical  element.  Kohler's  metaphysics,  for  ex- 
ample, is  also  a  scientific  metaphysics.  He  justifies 
it  in  the  same  way  that  science  affords  information 
concerning  celestial  bodies  that  are  beyond  the  power  of 
telescopes;  but  Kohler's  metaphysics  is  transcendental 
and  ideal. 

Miraglia's  ideal  element  admits  of  the  Hegelian  view 
of  the  State  as  an  ethical  unity,  but  he  does  not  assimilate 
his  dialectic  process.  A  metaphysics  such  as  this,  which 
does  not  leap  too  far  into  the  dark,  and  yet  holds  some- 
thing up  to  our  aspirations  toward  knowledge,  will 
frighten  no  one  away  from  philosophy  of  law.  The 
Italians  have  been  greatly  influenced  by  English  thinkers, 
and  their  philosophy  has  accordingly  followed  a  very 
conservative  course. 

This  treatise  adequately  covers  the  ground  that  the 
author  has  laid  out,  and  in  connection  with  Berolz- 
heimer's  volume  practically  exhausts  the  historical  part 
of  this  subject.  Philosophy  of  law  can  be  popularized 
no  more  than  the  integral  calculus.  But  this  work 
affords  an  excellent  means  of  approach  to  a  difficult 


INTRODUCTION  xxvii 

matter;  if  the  inherent  problems  are  not  made  easy, 
their  aspect  is  at  least  robbed  of  a  too  forbidding  severity. 
It  is  fortunate,  also,  to  find  in  its  translator  a  happy 
realization  of  the  combination  of  scholarship,  linguistic 
skill,  and  technical  knowledge,  necessary  to  present  this 
book  to  English  readers. 


BIOGRAPHICAL  NOTE  ON  THE  AUTHOR 


LUIGI  MIRAGLIA  was  born  at  Reggio  in  Calabria  in 
1846.  He  took  his  degree  at  Naples  in  1866,  and,  after 
several  years  of  teaching  in  subordinate  posts,  was 
appointed  to  the  chair  of  philosophy  of  law  in  the 
University  of  Naples.  He  was  at  the  same  time  pro- 
fessor of  political  economy  in  the  Agricultural  Scien- 
tific School  at  Portici.  Among  the  other  posts  later 
filled  by  him  at  various  times  were  those  of  Secretary  of 
the  Academy  of  Political  and  Moral  Science,  and  of 
President  of  the  Society  for  the  Advancement  of  Naples. 
A  final  distinction  —  often  conferred  in  Italy  for  juristic 
and  literary  eminence  —  was  the  royal  appointment  as 
Senator  of  the  Kingdom.  He  died  in  September,  1903. 

Among  his  numerous  books  and  essays  are  the  fol- 
lowing: "The  Fundamental  Principles  of  the  Various 
Systems  of  Legal  Philosophy,  and  Hegel's  Ethico- 
Juridical  Doctrines"  (1873);  "The  Modern  Philosophy 
of  Law  in  its  Relation  to  Industrial  Law"  (1874);  "The 
Primitive  Family  and  Natural  Law"  (1877);  "History 
and  Theory  of  the  Right  of  Prize-Capture  in  War" 
(1871);  "Studies  in  the  Science  of  Education"  (1871). 

The  first  work  above-named  received  a  second  edition 
in  1893;  and  the  third,  enlarged  edition,  in  1903,  bearing 
the  simple  title,  "Philosophy  of  Law,"  is  the  work  here 
translated. 


Co  tf)e  IHemorp  of 
J&2  JFatfjer 


PREFACE 


This  book  is  a  complete  course  in  the  Philosophy 
of  Law,  intended  for  the  use  of  undergraduate  students 
of  law.  It  can  be  easily  seen  that  a  course  in  the  Phil- 
osophy of  Law  in  a  law  school  cannot  have  the  same  char- 
acter and  the  same  scope  as  a  similar  course  in  a  school 
of  philosophy  or  art.  But  the  Philosophy  of  Law  must 
necessarily  be  a  part  of  philosophy,  and  therefore  must 
not  be  confused  with  an  introduction  to  the  study  of 
positive  law.  Taught  in  a  law  school,  it  should  sketch 
with  a  free  hand  the  organism  of  legal  institutions  ac- 
cording to  the  principles  of  reason,  and  should  have 
regard  to  the  multiplications  and  intimate  relations 
of  philosophy  with  the  legal,  social,  and  political  sciences. 
The  second  part  of  this  book  has  no  other  object  than 
to  extend  philosophical  thought  over  various  subjects 
that  for  a  long  time  have  been  considered  apart  from 
any  such  relation. 

LUIGI  MIRAGLIA. 


TABLE  OF  CONTENTS 


INTRODUCTION 

1.  Greek  Speculation  and  Roman  Dogma 1 

2.  The  Philosophy  of  the  Middle  Ages 7 

3.  The  Renaissance 12 

4.  Bacon,  Des  Cartes,  and  Grotius 19 

5.  Hobbes,  Spinoza,  and  Leibnitz 25 

6.  Puffendorf ,  Thomasius,  and  Wolff.    Rousseau 33 

7.  Vico       41 

8.  Kant 46 

9.  Genovesi,  Fichte,  Spedalieri,  and   Romagnosi 50 

10.  The  Writers  of  the  Reactionary  Period.     The  Historical 
and    Philosophical     Schools.       Schelling    and     Schleier- 
macher 60 

11.  Hegel     66 

12.  Rosmini,    Herbart,    Trendelenburg,    and    Krause.      The 
various    phases  of    Schelling's    philosophy.      Stahl    and 
Schopenhauer 71 

13.  Materialism,  Positivism,  and  Criticism 82 


BOOK    I 
GENERAL    PART 


CHAPTER    I 

THE  IDEA  OF  THE  PHILOSOPHY  OF  THE  LAW 87 

Philosophy  and  the  sciences.  The  character  of  modern 
philosophy  as  foreshadowed  by  Vico.  Philosophy  of  the  law 
as  part  of  philosophy.  The  human  idea  of  law  according 
to  the  doctrine  of  Vico,  and  the  definitions  of  Kant,  Hegel, 
Trendelenburg,  Romagnosi,  and  Rosmini.  The  social  and 
legal  theories.  Law  and  positive  philosophy. 


xxxiv  CONTENTS 

CHAPTER    II 

THE  IDEA  OF  LAW  AND  LOGICAL  METHODS 104 

Induction  and  deduction.  Induction,  observation,  and  ex- 
periment. The  idea  of  natural  law  and  that  of  the  civil 
good  (of  Amari)  as  shown  by  induction.  The  importance  of 
the  comparative  historical  method  used  by  Vico,  Amari, Post, 
and  Maine.  Parallelism  in  the  development  of  language 
and  law.  Statistic  induction.  The  duty  of  deduction. 
The  abstract  and  concrete  universals  as  principals. 

CHAPTER    III 

THE  INDUCTIVE  IDEA  OF  LAW 119 

The  study  of  the  ethico-juridic  consciousness  of  various 
peoples.  The  contribution  of  the  Aryan  and  Semitic  races 
to  the  history  of  civilization.  The  idea  of  law  as  the  meas- 
ure of  the  Aryan  race.  Measure  based  on  the  physical 
order,  on  positive  law,  and  reason. 

CHAPTER    IV 
THE  THEORETICAL  PRESUPPOSITIONS  OF  THE  DEDUCTIVE 

IDEA  OF  LAW 135 

The  principle  of  personality.  The  organic  and  spiritual 
elements  of  the  person  and  their  correspondence.  The  un- 
folding of  materialism.  The  theory  of  evolution.  The 
criticism  of  mechanical  evolution. 

CHAPTER    V 
COROLLARIES  OF  THESE  THEORETICAL  PRESUPPOSITIONS.  . .   157 

The  theory  of  evolution  and  psychology.  Fundamental 
sentiment  and  the  sensations.  Consciousness  and  its  origin. 
Sensible  and  cognitive  representations.  Thought  and  the 
categories.  Cognition  according  to  objective  empiricism. 
Criticism  of  that  theory. 

CHAPTER    VI 
PRACTICAL  FOUNDATIONS  OF  THE  DEDUCTIVE  IDEA  OF 

LAW.     DEVELOPMENT  AND  DIVISION  178 

Instinct,  desire,  and  will.  Caprice  and  moral  freedom. 
The  constancy  of  human  acts  as  shown  by  statistics. 
End  of  man  and  happiness.  Human  happiness  and  the  law. 
The  imperative,  prohibitive,  and  permissive  forms  of  law. 
Law  as  a  principle  of  coercion  or  coexistence  and  of  harmony, 
The  rational  tri-division  of  law.  The  division  of  Gaius. 


CONTENTS  xxxv 

CHAPTER    VII 

CRITICAL  ANALYSIS  OF  THE  PRINCIPAL  DEFINITIONS  OF 

LAW 210 

The  doctrines  that  give  preference  to  the  sensible  content 
of  law:  Hobbes,  Spinoza,  Rousseau,  Stuart  Mill,  and 
Spencer.  The  doctrines  that  consider  law  as  an  abstract 
rational  form :  Kant,  Fichte,  and  Herbart.  The  definitions 
of  Krause  and  of  Trendelenburg.  The  truth  of  the  doctrines 
examined. 

CHAPTER    VIII 

LAW.  MORALS,  AND  SOCIAL  SCIENCE 242 

The  law  as  an  ethical  study.  The  relation  between  morals 
and  law  in  history.  Criticism  of  the  confusion  and  separa- 
tion of  the  two  terms.  The  common  bases  and  real  differ- 
ence. Ethical  and  social  life.  Vico,  Suessmilch,  and  the 
physiocratic  forerunners  of  social  science.  Comte's  soci- 
ology and  the  various  movements.  Spencer's  sociology. 
Sociology  as  the  philosophy  of  the  social  sciences.  The 
analogies  between  society  and  organism.  The  relations 
between  law  and  the  social  sciences. 

CHAPTER    IX 

LAW,  SOCIAL  ECONOMY,  AND  POLITICS 267 

The  social-economic  regulations  and  the  ancient 
and  modern  philosophers  of  law.  Ethics,  sociology  based  on 
biology,  politics,  and  history  as  hypotheses  of  economics. 
The  character  of  the  economic  fact.  The  relations  of  law 
and  economics.  The  concept  of  politics.  Politics,  the 
social  sciences,  ethics,  and  law.  The  full  meaning  of  the 
State. 

CHAPTER    X 
RATIONAL  AND  POSITIVE  LAW.  SOURCES  AND  APPLICATION.  295 

The  distinction  between  rational  and  positive  law  in  their 
nature  and  in  history.  Habit  and  primitive  custom.  Juris- 
prudence and  its  office.  Legislation  and  the  codes.  The 
efficacy  of  statutes  in  space.  The  efficacy  of  the  statutes 
in  time.  The  diverse  theories  of  retroactivity. 


CONTENTS 

BOOK    II 
PRIVATE    LAW 


CHAPTER    I 

THE  INDIVIDUAL  AND  HIS  RIGHTS 319 

The  person.  Essential  or  inherent  rights  and  acci- 
dental or  acquired  rights.  The  principle  of  rights. 
The  right  to  physical  and  moral  life.  The  right  to  freedom. 
The  right  to  equality,  society,  and  health.  The  right  to 
work. 

CHAPTER     II 

THE  HISTORICAL  CONCEPTION  OF  INHERENT  RIGHTS 343 

The  rights  of  man  in  the  state  of  nature.  The  state  of 
nature  according  to  the  philosophers  of  the  XVIII  century 
considered  in  connection  with  the  natural  state  of  the 
Roman  jurisconsults  and  the  Greek  philosophers.  The 
theory  of  knowledge,  and  the  methods  of  conceiving  the 
essential  rights  of  the  person.  The  inherent  rights  of 
modern  philosophy.  The  regimes  of  status  and  contract. 

CHAPTER    III 

INCORPOREAL  PERSONS 361 

The  scope  of  incorporeal  persons.  The  theories  of  fiction 
and  of  equivalency.  The  theory  that  looks  upon  the  incor- 
poreal person  as  a  vehicle.  The  theory  of  the  complexity  of 
rights  sui  juris.  The  ideas  of  the  German  publicists.  The 
real  subject  in  a  corporation  or  foundation.  The  rights 
of  the  incorporeal  persons  and  the  jus  confirmandi  of  the 
State.  The  theory  of  Giorgi. 

CHAPTER     IV 

PROPERTY  AND  THE  METHODS  OF  ACQUIRING  IT 382 

Property  and  its  rational  basis.  Doctrines  dealing 
with  this  basis.  Limitations  and  control  of  property. 
Original  and  derivative  methods  of  acquisition. 


CONTENTS  xxxvii 

CHAPTER    V 
THE  HISTORY  OF  PROPERTY  AND  OF  METHODS  OF  ITS 

ACQUISITION   401 

The  acquisitive  activity  of  animals  and  man.  The  his- 
tory of  property  and  the  history  of  personality.  Collective 
property.  The  family  community.  Christianity  and  the 
worth  of  the  individual.  Feudalism.  The  Reformation 
and  natural  law.  Complete  individualization,  and  the 
control  of  private  property.  The  methods  of  primitive 
acquisition.  The  division  of  property.  Prescription, 
equity,  and  civil  procedure. 

CHAPTER     VI 

PREDIAL  PROPERTY  IN  THE  SOIL 433 

Collective  ownership  of  land.  Wagner's  theory  of  the 
ownership  of  manufactories.  Spencer's  theory  on  the 
ownership  of  land.  Private  ownership  of  land  and  rent. 
The  doctrines  of  Henry  George  and  of  Loria  as  to  land. 

CHAPTER    VII 

PROPERTY  IN  FORESTS  AND  MINES 460 

The  functions  of  the  forests.  Right*  of  deforestation. 
Its  restraint  and  the  reasons  therefor.  Mining  property 
and  the  phases  of  the  industry.  Criticisms  of  arguments 
in  favor  of  the  owner  of  the  soil.  The  doctrine  that  attri- 
butes the  ore  to  the  discoverer. 

CHAPTER    VIII 

INDUSTRIAL  PROPERTY  480 

The  merchandise  of  labor  and  its  price.  Work  as  prop- 
erty. Unions  and  strikes.  The  industrial  jury.  The 
ownership  of  capital  and  property.  Collectivism  and 
mutualism.  The  theory  of  Marx.  Criticism  of  collectiv- 
ism and  of  the  theory  of  Marx.  Trusts. 

CHAPTER     IX 

COMMERCIAL  PROPERTY.     THE  RIGHT  OF  AN  AUTHOR  OR 

INVENTOR 512 

The  conception  of  commercial  property.  Freedom  of 
exchange.  Competition.  Primitive  notion  of  trade.  The 
right  of  the  author  before  and  after  the  invention  of  print- 
ing: its  basis  and  its  character.  The  right  of  the  inventor. 


xxxviii  CONTENTS 

CHAPTER    X 

SUNDRY  PROPERTY  RIGHTS 523 

Classification  of  rights  over  the  property  of  others. 
Servitudes  and  their  kinds.  The  methods  in  which 
servitudes  are  created,  exercised,  and  extinguished. 
Emphyteusis.  The  super-soil.  Pledge  and  mortgage. 
The  character  of  liens. 

CHAPTER    XI 

POSSESSION 539 

The  nature  of  possession.  Its  historical  origin.  Its  de- 
velopment in  legislation.  Critical  exposition  of  the  differ- 
ent absolute  and  relative  theories.  Its  rational  basis. 
Criticism  of  Ihering's  theory  of  the  will  to  possess. 

CHAPTER    XII 

OBLIGATIONS 553 

Obligations.  Their  origin.  The  sources  of  obligation. 
Their  various  kinds  and  forms.  The  different  forms  and 
their  distinction. 

CHAPTER    XIII 

CONTRACT  AND  ITS  FORMS 567 

The  notion  of  contract.  Its  phases  and  its  basis.  Essen- 
tial requisites.  Vices  of  consent  and  some  recent  theories. 
The  interpretation  of  contracts.  Their  classification;  and 
the  doctrines  of  Kant  and  Trendelenburg. 

CHAPTER    XIV 
FREEDOM  OF  CONTRACT  AND  THE  CONTRACT  OF  LABOR.  .  588 

Freedom  of  contract,  its  limits  and  its  guaranty.  The 
social  mission  of  private  law.  The  equality  of  the  parties 
in  the  contract  of  labor.  The  systems  that  regulate  the 
liability  of  the  employer  for  industrial  accidents. 

CHAPTER    XV 

USURY 598 

Interest  and  its  limitations.  Freedom  of  interest. 
Usury  and  its  methods.  Usury  as  a  form  of  civil  wrong 
and  the  methods  of  fighting  it.  Usury  as  a  crime.  Criti- 
cism of  the  theory  of  Stein.  The  special  features  of  the 
crime  of  usury.  Law  and  life. 


CONTENTS  xxxix 

CHAPTER    XVI 

PARTNERSHIP,  EXCHANGE,  TRANSPORTATION,  AND   SUN- 
DRY WAGERING  CONTRACTS 614 

The  contract  of  partnership  and  its  forms.  Partnership 
and  incorporeal  persons.  The  regime  of  authorization 
and  of  supervision.  Ancient  and  modern  exchange.  The 
nature  of  the  contract  of  transportation.  Insurance  and 
its  new  theories.  Gambling  contracts. 

CHAPTER  XVII 

THE  PRIMITIVE  FAMILY.    THE  FAMILY  AS  THE  PROTO- 
TYPE OF  THE  STATE 633 

Mating  and  the  instinct  of  reproduction  in  animals.  The 
theories  of  Lucretius  and  Vico.  Primitive  unions.  Ma- 
triarchy. Exogamy  and  rape.  The  beginnings  of  the 
development  of  the  patriarchal  family.  The  progres- 
sive individualization  of  relationship.  The  process  of 
specification,  and  the  object  of  the  family. 

CHAPTER    XVIII 

THE  CONJUGAL  RELATION 667 

Love  as  the  foundation  of  matrimony.  The  idea  of 
matrimony.  The  conditions.  Civil  matrimony.  The 
precedence  of  the  civil  ceremony.  The  relation  between 
the  parties.  Marital  authority.  Bebel's  book,  and  the 
idea  of  Spencer.  The  systems  by  which  property  is 
regulated  in  matrimony. 

CHAPTER    XIX 

INDISSOLUBLE  MARRIAGE  AND  DIVORCE 696 

The  ideal  of  indissolubility.  The  concrete  demands  of 
life.  The  question  of  divorce  in  relation  to  individual 
rights  and  social  and  historical  facts.  Divorce  and 
the  church.  Causes  of  divorce.  Precautions. 

CHAPTER    XX 

THE  PARENTAL  RELATIONSHIP 712 

The  tendency  to  re-live  in  others.  The  basis  and  phases 
of  the  patria  potestas.  Guardianship,  its  kinds,  and  trustee- 
ship. Adoption.  Children  born  out  of  matrimony. 
The  right  to  pursue  the  father.  Legitimation. 


xl  CONTENTS 

CHAPTER    XXI 

DEFINITION,  HISTORY,  AND  BASIS  OF  INHERITANCE 732 

The  conception  of  heredity.  Intestacy  and  testacy 
in  history.  Inheritance  and  ancestor  worship.  Doctrines 
as  to  the  basis  of  inheritance.  Domestic  co-ownership 
and  the  right  of  property,  as  bases  for  inheritance. 

CHAPTER    XXII 

INTESTACY  AND  THE  WILL 751 

The  degree  and  quality  of  relationship.  The  capacity 
of  succession.  The  classes  of  heirs.  Representation. 
Capacity  to  make  a  will  or  to  receive  through  a  will.  Kinds 
of  wills.  Intestacy.  The  right  of  representation  and 
testamentary  succession.  Mistakes  in  the  underlying  and 
immediate  cause.  Conditions.  The  right  to  the  increase. 
Substitution  and  trusts.  Principles  common  to  all 
kinds  of  succession. 


Comparative  Legal   Philosophy 


COMPARATIVE  LEGAL  PHILOSOPHY 
INTRODUCTION 

A  SURVEY    OF    PHILOSOPHICAL    SYSTEMS 

I 
GREEK    SPECULATION  AND    ROMAN  DOGMA 

The  fundamental  principle  of  things  and  of  knowledge 
is  to  be  found,  according  to  Greek  speculation,  always 
outside  the  mind  in  the  object.  The  object  for  the 
IONICS  is  water,  the  primitive  material  without  deter- 
minate quality  (that  is,  infinite),  and  the  air;  for  the 
PYTHAGOREANS,  it  is  number,  the  essence  of  things; 
for  the  ELEATICS,  it  is  pure,  abstract,  and  immovable 
being,  that  has  no  beginning,  nor  end,  that  is  not  divis- 
ible, that  does  not  go  from  place  to  place,  but  is 
always  one  and  perfect.  The  origin  of  beings,  accord- 
ing to  HERACLITUS,  is  birth  or  the  perennial  flow; 
according  to  EMPEDOCLES,  it  lies  in  the  complexity  of  the 
four  elements,  water,  air,  fire,  and  earth,  originally  differ- 
ent in  quality,  from  whose  union  and  separation  things 
are  born  and  perish;  and  for  DEMOCRITUS,  it  consists 
in  the  indefinite  plurality  of  atoms  without  qualitative 
difference  and  various  only  in  form. 

ANAXAGORAS  builds  up  the  Whole  with  primitive  ele- 
ments of  diverse  nature,  called  by  him  "seeds"  and  later 
"homoiomerei,"  and  with  the  Noos  or  intelligence  that 


2  INTRODUCTORY  SURVEY 

gives  them  their  order.  The  SOPHISTS  show  that  truth 
cannot  be  found  by  natural  knowledge,  because  phe- 
nomenon is  variable  and  contradictory.  The  reality  of 
things  is  different  from  our  knowledge,  and  therefore 
thought  is  only  a  belief,  and  happiness  lies  in  pleasure 
and  utility.  SOCRATES  discovers  the  ideal  object,  and 
teaches  that  true  knowledge  is  founded  on  the  con- 
cept of  things,  separated  by  induction  and  determinated 
by  definition.  PLATO  raises  the  Socratic  concepts  (now 
become  ideas)  and  gives  them  their  order  by  dialectics. 
Belief,  in  his  mind,  is  connected  with  sensible  phe- 
nomena, while  the  concept  corresponds  to  the  real  and 
immutable  essence  or  idea,  as  a  metaphysical  principle. 
ARISTOTLE  makes  the  Platonic  idea  the  form  of  reality, 
because  there  can  be  no  essence  without  phenomena. 

After  Plato  and  Aristotle  came  the  philosophers  of 
the  ideal  objectivity,  with  the  belief  that  the  principle 
of  things  is  not  yet  found,  and  that,  consequently,  it  is 
convenient  to  let  practical  interest  prevail  and  to  lull 
the  spirit  to  sleep  with  internal  satisfactions.  STOICISM, 
EPICUREANISM,  and  SCEPTICISM  express  the  same 
tendency  of  the  subject  to  renounce  the  possibility  of 
self-satisfaction.  The  Stoics  and  the  Epicureans  con- 
sider knowledge  as  a  means  of  practical  life,  whose  object 
is  the  happiness  attainable  only  by  reason  freed  from  pas- 
sion, that  is,  by  virtue,  according  to  the  first,  or  by  sense 
and  pleasure  aided  by  calculation,  according  to  the  sec- 
ond. The  Sceptics  believe  that  the  satisfaction  of  the 
spirit  is  not  best  attained  by  knowledge  because  things 
are  unknowable  and  indifferent  for  us,  for  we  can  at- 
tribute to  them  different  and  contradictory  predicates. 
If  things  are  indifferent  for  us,  the  spirit  should  not  be  dis- 
turbed, whatever  happens.  Scepticism  is  the  demonstra- 
tion that  truth  cannot  be  learned  by  reason ;  differing  from 
the  teaching  of  the  Sophists,  which  is  the  demonstration 


GREEKS  AND  ROMANS  3 

that  truth  cannot  be  attained  by  natural  knowledge  or 
sense.  Therefore,  Socrates  opposes  the  Sophists  and 
says  that  if  truth  cannot  be  learned  by  sense  or  belief, 
it  is  found  in  knowledge,  or  the  concepts. 

Since  we  cannot  learn  truth  by  reason,  conclude  the 
NEO-PLATONISTS,  it  must  be  higher  than  reason  and 
must  be  regarded  as  a  principle  transcendent,  supra- 
intelligible,  ineffable,  an  object  of  faith,  ascetics,  and 
ecstatics.  The  supra-intelligible  in  Neo-Platonism  is 
nothing  more  than  the  old  Greek  intellect,  which  by  its 
nature  always  seeks  the  principle  of  things  without 
itself,  since  it  is  without  its  own  content;  that  is,  truth 
which  is  felt  in  an  objective  manner. 

The  Ethos,  given  such  a  character  in  Greek  philosophy, 
cannot  fail  to  be  objective  and  to  be  established,  there- 
fore, in  the  form  of  a  natural  organism.  In  such,  the 
part  is  always  medial  and  never  ultimate;  hence  the 
defect  of  any  true  personal  and  private  right  in  Greek 
society.  Pythagoras  sees  in  justice  a  number;  Socrates 
discerns  the  measure  of  all  things  in  the  common 
nature  of  men,  all  eager  for  happiness,  who  attain  it 
in  its  truth,  through  the  realization  of  the  concepts, 
that  represent  the  ideal  object.  Plato  places  the  Ethos 
in  the  idea  of  happiness,  which  controls  in  the  spiritual 
world,  having  actual  substance,  as  supreme  as  the  sun, 
which  does  not  depend  upon  the  beholder  but  sheds  its 
light  over  all.  Such  an  idea  (which  has  no  part  in 
reality,  although  reality  can  mould  itself  thereon) 
cannot  be  better  incarnated  than  in  a  beautiful  and  arti- 
ficial state,  all  complete,  as  Minerva,  springing  fully 
armed  from  the  head  of  Jupiter.  The  Platonic  state  is 
ideal,  exemplary;  it  represents  man  in  the  abstract,  and 
unites  in  itself  the  variety  of  individual  potentialities 
by  that  same  force  by  which  the  internal  principle 
of  life  interpenetrates  the  organs. 


4  INTRODUCTORY  SURVEY 

According  to  Aristotle,  the  Ethos  must  be  found  in 
reality  and  the  purpose  of  nature;  whence  the  maxim 
that  no  institution  is  good  unless  it  conforms  to  nature, 
and  also  the  value  of  the  methods  of  comparison  and 
analogy  with  which  he  builds  up  his  politics.  He  holds 
that  the  State,  not  any  of  its  components,  is  the  child 
of  the  need  which  human  beings,  being  neither  animals 
nor  gods,  feel  for  unity  and  development;  the  State 
makes  for  the  consummation  and  happiness  that  is  the 
result  of  the  unification,  desired  by  nature,  of  all  human 
activities  and,  therefore,  it  has  the  duty  of  making 
good  and  just  citizens.  Aristotle  criticizes  Plato  for 
having  recognized  a  separate  ideal  essence,  while 
giving  to  the  State  an  attribute  which  he  denies  to  its 
components;  Plato  criticizes  the  master  because  he  has 
conceived  the  State  as  a  mere  empty  unity,  while  har- 
mony is  not  derived  from  a  single  tone  but  from  many; 
and  yet  he  excludes  slaves,  farmers,  and  artisans  from 
effective  participation  in  that  ethical  eudemony  made, 
by  him,  the  basis  of  the  State. 

In  general,  the  Greek  State  is  not  of  the  highest  type 
because  it  is  a  natural  organic  body  and  not  an  ethical 
or  human  organization.  It  can  be  said  to  be  gifted 
with  classic  beauty  but  it  lacks  the  nobler  and  higher 
qualities  contained  with  such  potentiality  in  the  Chris- 
tian faith.  Stoicism  places  wisdom  above  the  State, 
withdrawing  from  the  world  and  condemning  itself  to 
complete  impassivity;  for,  in  this  belief,  individual  life 
is  lost  in  that  of  humanity,  and  the  life  of  humanity  is 
confused  with  universal  life.  For  the  Epicureans,  suffer- 
ing is  evil  and  the  wise  man  works  for  lasting  peace. 
Scepticism,  on  account  of  the  confusion  of  phenomena, 
forms  no  judgment  and  lives  in  apathy.  The  wise  man 
among  the  Neo-Platonists  hopes  to  be  included  by  the 
inconceivable  principle  of  the  whole  through  asceticism 


GREEKS  AND  ROMANS  5 

and  ecstaticism  by  which  PLOTINUS  was  made  happy  in 
three  or  four  visions. 

The  ROMAN  world  is  the  world  of  the  will,  and,  there- 
fore, of  law  and  politics.  The  will,  in  such  a  world, 
on  the  one  hand,  is  continuously  seen  in  the  controlling 
and  inflexible  order  of  the  State,  and,  on  the  other, 
begins  to  develop  in  the  form  of  individual  rights.  With 
the  development  of  the  principle  of  will  with  its  subjec- 
tive nature,  private  rights  cannot  fail  to  arise,  and  the 
State  cannot  long  preserve  the  rough  semblance  of  a 
natural  organic  object.  In  Rome,  private  law  was  at 
first  strict,  ironclad,  and  cramped.  Then  it  extended, 
becoming  facile,  general,  supple,  and  equitable;  for 
equity  guards  the  right,  which  the  law,  in  its  generality, 
cannot  protect.  And  finally  it  became  human  law,  and, 
consequently,  proclaimed  the  principle  that  slavery,  an 
institution  of  mankind  and  contrary  to  nature,  does  not 
control  the  spirit,  and  that  men,  in  natural  law,  are  free 
and  equal. 

CICERO,  the  greatest  philosopher  of  the  Roman  world, 
having  no  scientific  knowledge  of  the  manifestation  of 
subjective  rights  as  the  act  of  the  abstract  power  of 
the  will,  is  inferior  to  Roman  realism.  He  is  not  the 
author  of  a  philosophy  of  his  own,  but  he  follows,  as  an 
eclectic,  the  Greek  writers;  he  professes  his  doubt;  he 
does  not  believe  that  mind  can  be  absolutely  sure,  but 
thinks  that  it  is  satisfied  with  simple  verisimilitude. 
In  Ethics,  he  eliminates  doubt,  on  account  of  its  dan- 
gerous consequences,  and  appeals  to  the  immediate 
consciousness,  in  which  are  found  the  germs  of  virtue, 
and  to  the  consensus  of  mankind  to  define  the  honest 
and  establish  some  speculative  foundation  for  it.  He 
prefers  the  ethical  principle  of  the  Stoics,  which  as  a 
practical  man  he  modifies;  he  derives  law  not  from  the 
statutes  of  the  Twelve  Tables  or  the  Edicts,  but  from 


6.  INTRODUCTORY  SURVEY 

human  nature;  he  reproduces  the  Aristotelean  theory 
of  the  State,  but  assigns  it  a  mixed  form,  proper  to  the 
political  organization  of  Rome. 


THE  MIDDLE  AGES  7 

II 
THE  PHILOSOPHY  OF  THE  MIDDLE  AGES 

The  empty  subject,  represented  by  the  Neo-Platonists 
as  an  object,  received  in  the  Middle  Ages  all  its  concrete- 
ness  and,  in  the  terms  of  Christianity,  was  denned  as 
the  Word  or  absolute  mind.  Philosophy,  henceforth, 
became  a  subjective  principle.  Man,  the  image  of  God, 
and  the  incarnation  of  the  Word,  came  to  his  own;  and 
the  ancient  State,  losing  its  high  significance,  was  con- 
stricted within  closer  bounds.  The  more  intimate  part 
of  the  individual  was  no  longer  subjected  to  the  political 
power,  but  rather  to  new  beliefs  that  originally  kept 
within  the  celestial  realm  in  which  they  were  born  and 
acted  in  opposition  to  the  pagan  regime.  The  Apostle 
created  a  contradiction  between  the  desires  of  the  flesh 
and  the  impulses  of  the  spirit.  LACTANTIUS  believed  that 
true  justice  lay  in  the  worship  of  the  one  God,  unknown 
to  the  Gentiles.  AUGUSTINE  speaks  of  a  celestial  city, 
the  seat  of  truth  and  justice,  in  contradistinction  to  the 
terrestrial  city,  the  den  of  thieves  and  the  product  of 
original  sin.  The  terrestrial  city  can  acquire  an  ethical 
value  by  giving  itself  over  to  the  defense  of  the  Church, 
which  had  not  at  this  time  acquired  its  character  of 
ruler  or  its  mundane  interests. 

The  struggle  between  Christianity  and  the  world  was, 
much  diminished  when,  through  the  work  of  religious 
phantasy,  the  celestial  city  was  populated  by  an  host 
subject  to  divine  command,  possessing  an  history,  and 
the  earth  became  holy  through  contact  with  the  Church ; 
which,  in  its  turn,  became  a  temporal  instead  of  a  spiritual 
communion.  The  conciliation  was  effected  through  a 
new  conception  of  participation,  of  which  THOMAS 


8  INTRODUCTORY  SURVEY 

AQUINAS  was  the  founder.  Aristotle  had  said  that  the 
universals  are  second  substances,  and  he  had  further 
asserted  that  they  were  qualities.  REALISM  developed 
the  side  of  the  Aristotelean  system  in  which  the  univer- 
sals appear  as  separate  forms.  NOMINALISM  was  in  its 
turn  based  on  that  side  in  which  primal  reality  seems 
placed  in  the  individual.  Nominalism,  not  being  easily 
correlated  with  any  dogmas,  was  soon  condemned; 
Realism,  being  analogous  to  the  heterodox  transcenden- 
talism of  the  Arabian  commentators,  met  a  similar  fate. 
Aquinas,  in  the  footsteps  of  ALBERTUS  MAGNUS,  tried  a 
compromise,  claiming  that  the  universals  are  models  of 
creation  before  material  existence,  and  that  in  material 
existence  they  are  the  substance  of  our  conceptions. 

There  is,  for  Aquinas,  one  eternal  law  in  God ;  a  natural 
law,  which  is  a  participation  in  the  eternal,  the  light  of 
knowledge  and  the  norm  of  ethical  and  juristic  acts; 
and  a  human  or  positive  law,  a  shadow  of  the  natural, 
just  as  that  in  its  turn  is  a  shadow  of  the  eternal.  But 
he  did  not  succeed  in  his  project  of  conciliation;  for  the 
supernatural  remained  in  its  transcendence  in  the  divine 
intellect,  and  the  sphere  of  the  king  (who  must  obey 
Aristotle)  remained  in  opposition  to  the  sphere  of  the 
priest  (who  must  obey  the  Bible).  Hence  the  existence 
of  contradictory  sentences  in  St.  Thomas,  who  now 
derives  the  State  from  the  social  nature  of  man,  and 
assigns  happiness  for  its  object,  and  general  consent  for 
its  base,  and  yet  at  the  same  time  considers  it  the 
realization  of  the  divine  kingdom  in  its  temporal  aspect. 
The  amalgam  dissolved,  the  Aristotelean  elements  finally 
concentrated  in  the  political  doctrines  of  MARSILIUS  of 
Padua,  and  the  traditional  in  the  dynastico-hierarchical 
doctrines  of  PETER  of  Andlo.  While  EGIDIO  COLONNA, 
on  the  one  hand,  exaggerated  the  religious  principle, 
presenting  the  type  of  hermit-prince  lacking  confidence 


THE  MIDDLE  AGES  9 

in  his  own  power  and  love  of  glory,  and  advised  the  pur- 
suit of  happiness  in  God,  on  the  other  hand  he  repro- 
duced the  ideas  of  the  Stagirite  and  gained  from  his 
contemporaries  the  title  of  "doctor  fundatissimus." 

DANTE  conceived  law  as  the  personal  and  real  relation 
between  man  and  man,  and  therefore  distinguished  it 
from  morals,  by  which  an  action  is  good  or  bad  of  itself 
without  relation  to  the  rights  of  another.  He  knew 
how  to  distinguish  with  fine  acumen  the  difference 
between  legal  freedom  and  untrammelled  caprice;  be- 
cause the  former,  according  to  him,  is  the  power  that 
makes  every  individual  competent  to  work  in  accord- 
ance with  the  judgment  that  he  himself  has  made  about 
the  rectitude  of  his  acts  without  being  disturbed  by 
others ;  the  latter  is  only  governed  by  desire.  The  object 
of  civil  society,  in  his  mind,  is  the  increase  of  civiliza- 
tion, which  lies  in  the  greatest  possible  development  of 
the  mind.  Law  strengthens  it;  otherwise,  it  does  not 
deserve  its  great  name.  The  State  looks  to  the  attain- 
ment of  the  transitory  aims  of  human  nature,  while  the 
Church,  concerned  with  non-transitory  objects,  cannot 
exercise  civil  dominion.  Dante  solved  the  political 
problem  by  a  system  of  free  and  independent  municipal 
States,  each  the  head  of  its  own  territory,  with  power 
to  resist  possible  discordant  ambitions  vested  in  a  king 
or  supreme  magistrate  of  the  republic  of  the  States,  who 
would  govern  according  to  fundamental  laws  and  be 
the  agent  of  all  the  States.  The  principle  of  unity  is 
present  in  the  mind  of  Dante  on  every  side;  because  of 
the  predominating  divine  analogy,  because  of  the  classic 
remembrance  of  the  Empire,  because  of  the  constitu- 
tion of  the  Church,  equally  catholic,  and  because  of  his 
purpose  of  avoiding  struggles  between  nations. 

BARTOLUS,  who  deserves  credit  for  having  extended 
the  sphere  of  jurisprudence  by  collecting  analogies  from 


10  INTRODUCTORY  SURVEY 

the  cases  decided  by  the  Roman  jurisconsults  and  for 
having  freed  judges  from  many  difficulties  and  accused 
persons  from  corruption  on  the  part  of  the  judges, 
does  not  consider  (because  he  is  a  writer  on  practical 
law)  the  history  of  the  philosophy  of  law.  Fc-  the  same 
reason  all  the  commentators  disregard  it,  however 
keen  they  may  be  in  the  discovery  of  equitable  prin- 
ciples, and  in  the  application  of  the  dialectics  of  Arabian 
philosophy  to  the  treatment  of  various  subjects.  So 
Bartolus  disregards  it  in  the  sphere  of  civil  law  (as 
Gravina  has  said).  The  Thomists  and  the  Scotists, 
irreconcilable  in  all  else,  agree  in  admitting  an  idealistic 
and  realistic  duality.  OCCAM  destroys  such  inter- 
mediaries in  the  order  of  cognition  and  recognizes  direct 
communion  of  subject  and  object;  on  the  practical 
score,  he,  the  enemy  of  intermediaries,  shows  in  a  con- 
cise way  the  necessity  of  the  separation  of  State  and 
Church.  Occam  separates  also  theology  from  phil- 
osophy, and  discusses  the  contradictions  of  dogma  and 
reason.  For  him,  reason  is  insufficient,  and  the  only 
meams  of  salvation  is  faith.  Theology,  separated  from 
philosophy,  is  thought  safe  because  its  enemy  is  no 
longer  by  its  side,  and  Philosophy  becomes  freer. 

This  is  the  moment  of  the  dissolution  of  Scholasticism, 
which  had  represented  a  progressive  step  from  Patris- 
ticism.  Patristic  philosophy  is  the  elaboration  of  dogma 
by  philosophic  reflection.  Scholasticism  is  the  systema- 
tization  of  definite  dogmas  and  the  demonstration  of 
their  coherence.  Both  Scholastics  and  Patristics  rely 
on  dogma,  to  which  the  Scholastics  apply  rationalistic 
methods,  distinguishing,  therefore,  belief  from  faith. 
Faith  and  reason,  at  first,  are  in  accord,  though  the 
latter  depends  upon  the  former.  Later,  the  two  terms 
are  found  in  disaccord,  and  separate,  resulting  in  the 
downfall  of  Scholastics.  Here  it  is  useful  to  remember 


THE  MIDDLE  AGES  11 

that  even  from  its  beginning  Scholasticism  had  two 
diverse  directions;  Duns  SCOTUS  says  that  authority 
comes  from  reason,  and  ANSELM  of  Aosta  teaches  that 
there  is  no  need. of  understanding  in  order  to  believe, 
but  that  belief  is  necessary  in  order  to  understand. 

In  the  days  of  Scholasticism,  other  systems  appeared, 
which,  though  not  generally  received,  are  important 
because  they  contained  the  germs  of  future  specula- 
tion. These  systems  depend  also  on  the  hypothesis  of 
transcendentalism,  although  they  are  not  logically  har- 
monious therewith.  Roger  BACON  recommends  the 
study  of  language,  to  understand  the  sources,  and  he 
relies  greatly  on  mathematical  and  natural  sciences, 
and  states  that  without  experience  nothing  can  be  known, 
and  that  experience  alone  should  control  speculative 
studies.  But  he  connects  internal  experience  with  mysti- 
cism and  places  theology  above  philosophy;  teaching 
that  knowledge  is  vain  if  it  has  not  the  divine  for  an 
object.  Raymond  LULLY  considers  demonstration  more 
important  than  faith;  in  the  "Ars  Magna,"  a  logical 
and  mathematical  method  of  unifying  the  concepts  and 
of  resolving  scientific  problems,  he  tries  to  constitute 
an  a  priori  science  and  faith.  NICHOLAS  of  Cusa  admits 
that  the  mind  can  raise  itself  to  infinitude  as  a  prin- 
ciple in  which  contradictions  coincide.  Such  coincidence 
cannot  be  understood  by  science,  and  therefore  there  is 
a  state  of  learned  ignorance.  For  him,  God  is  the 
absolute  greatness  in  which  all  being  is  bound;  the  uni- 
verse is  the  concrete  greatness  that  contains  explicitly 
what  God  contains  implicitly. 


12  INTRODUCTORY  SURVEY 

III 
THE    RENAISSANCE 

Scholastic  philosophy  deprives  the  mind  of  truth 
(which  is  contained  in  the  definition  of  faith),  and  does 
not  include  nature  in  its  categories.  The  ensuing 
philosophy,  a  complete  criticism  of  Scholasticism,  is 
sceptic  because  truth  placed  above  the  intellect  cannot 
be  attained;  and  it  inclines  to  Naturalism,  because, 
according  to  the  thinkers  of  the  Renaissance,  in  nature 
alone  can  be  seen  the  traces  and  later  the  very  substance 
of  truth,  abstracted  by  mind  and  encompassed  by 
dogma. 

The  conviction  of  the  divine  worth  of  the  world  and 
of  man  arose  after  humanity  grew  hungry  in  its  inability 
to  find  God  either  in  the  Church  (become  too  terrestrial 
with  its  wealth  and  its  government)  or  in  the  Holy 
Sepulchre  (the  aim  of  the  Crusades).  This  was  the 
cause  of  the  renewal  of  classic  culture,  which  implied 
an  attentive  study  of  phenomena,  a  respect  for  work, 
a  general  need  of  reform,  and  the  end  of  political  feudal- 
ism (so  closely  connected  with  religion  and  speculation). 
By  this  conviction,  largely,  were  caused  many  of  the 
important  characteristics  of  the  new  age,  such  as  the 
increase  of  commerce  (following  the  Crusades),  the  voy- 
ages for  the  discovery  of  new  lands  and  a  new  con- 
tinent, the  independence  of  lay  authority,  and  the 
formation  of  absolute  monarchies.  These  destroyed 
the  feudal  power  and  laid  the  foundation  stone  of 
nationality,  of  Protestantism,  and  of  the  Catholic 
Restoration,  with  the  decrease  in  papal  authority. 
The  invention  of  printing  expressed  the  first  unity  of 
popular  thought.  So  the  man  of  the  Middle  Ages  was 


THE  RENAISSANCE  13 

transformed  into  that  new  man  who  follows  a  thousand 
industries,  who  is  tenacious  of  his  profession,  who  con- 
cerns himself  with  the  facts  of  this  world  in  popular 
assemblies,  who  no  longer  runs  to  liberate  sepulchres, 
nor  attends  tourneys,  but  laughs  in  his  sleeve  at  the 
stories  of  the  investiture  of  popes  and  kings. 

In  Italy,  the  new  man  was  incarnate  in  MACHIAVELLI. 
Completely  dominated  by  the  spirit  of  his  time,  he  did 
not  seek  the  aid  of  metaphysical  and  theological  ele- 
ments for  social  reconstruction;  these  he  held  up  to 
scorn  with  fine  irony,  when  he  discoursed  about  the 
ecclesiastical  principalities.  He  went  deep  into  the 
effectual  truth  of  things,  and  was  not  satisfied  with  its 
image.  His  purpose  was  to  make  Italy  a  State.  He 
saw  that,  in  his  day,  this  could  not  be  attained  by  moral 
methods;  and,  having  before  his  mind  the  ineffectual 
attempt  of  SAVONAROLA,  he  fought  a  practical  battle 
without  hesitation  over  the  morality  of  his  means.  He 
conceived  of  the  State  as  a  distinct  institution  —  essen- 
tially civil,  and  having  in  itself  a  reason  for  existence, 
and  strong  in  its  own  force.  Machiavelli  did  not  go 
out  of  the  circle  of  political  types  designed  by  POLYB- 
lus;  and,  like  Polybius,  he  preferred  the  mixed  type 
(of  which  Paruta  later  accurately  measured  the  difficulty) . 

PROTESTANTISM  was  an  act  of  the  new  man.  After 
starting  with  honest  principles,  it  was  not  perverted  by 
LUTHER  (as  Guicciardini  maintained);  nor  was  it  the 
result  of  mere  opportunity  (as  the  Jesuits  and  Voltaire 
have  said).  Protestantism  destroyed  the  hierarchy.  It 
wanted  the  divine  Word  to  be  interpreted  by  free 
and  independent  reason,  by  the  individual  soul;  it 
proclaimed  in  concise  manner  the  individuality  of  con- 
science. In  Italy,  the  Lutheran  movement  was  not 
successful,  because  Italy  possessed  a  literature  and 
philosophy  greatly  superior  to  the  Protestant  idea,  as 


14  INTRODUCTORY  SURVEY 

FLORENTINUS  pointed  out.  In  Italy,  the  land  of  so  many 
religious  sects  and  of  so  many  tentative  reforms,  the 
recovery  of  Greek  culture  had  already  inspired  the  study 
of  Aristotle  in  the  original,  while  in  Germany  they  still 
studied  a  translation  of  the  Old  Testament.  The 
Italians  were  emancipated  by  the  exclusively  rational 
character  of  their  studies.  Among  Luther's  com- 
patriots Protestantism  was  a  national  slogan;  it  signi- 
fied the  destruction  of  Frederick's  following,  and  by  its 
religious  character  it  became  popular.  But  Protes- 
tantism in  its  first  moments  so  exaggerated  the  intimacy 
of  man  and  God  as  to  make  faith,  and  not  good  works, 
the  only  dispenser  of  salvation;  the  only  means  was 
grace,  excluding  all  human  cooperation  and  free  will. 
Ethics  cannot  fail  to  be  prejudiced  by  such  an 
exaggeration. 

In  the  glorious  days  of  the  Renaissance,  there  flour- 
ished the  renowned  followers  of  Plato  and  Aristotle  — 
originators  and  reformers  of  philology,  all  of  whom  had 
more  or  less  sceptical  tendencies  and  depended  upon 
nature  and  experience.  They  honored,  for  example, 
among  the  Aristoteleans,  POMPONAZZI,  among  the  new 
philologists,  VIVES,  among  the  reformers,  MELANCH- 
THON; — which  is  a  proof  of  what  we  have  stated. 
Pomponazzi  believed  that  our  knowledge  is  only  a 
shadow  and  trace  of  mind,  that  man  is  but  a  figure  of 
the  immaterial  and  knows  but  little  of  his  nature; 
that  sense  is  more  powerful  than  reason.  On  the  other 
hand,  he  shows  that  man  can  in  action  attain  that  per- 
fection which  he  cannot  attain  with  the  mind,  and  that 
theoretical  and  practical  intellect  is  impossible  without 
the  body.  Vives  held  that  human  science  is  limited, 
that  it  only  attains  verisimilitude,  and  that  the  practical 
element  should  be  preferred  to  the  speculative.  This 
famous  philologist  (not  logical  in  his  sceptical  principles) 


THE  RENAISSANCE  15 

made  the  distinction  (which  Vico  made  later)  that  in 
human  affairs,  and  therefore  in  law,  there  are  two  ele- 
ments, absolute  truth  and  mere  probability,  and 
observed  that  the  true  should  be  the  aim  of  the  prob- 
able, established  by  the  free  will  of  men  for  common 
utility.  Such  a  distinction  is  found  in  the  books  of 
Plato.  In  treating  of  truth  and  belief,  Vives  placed 
natural  law  in  superiority  to  divine  law,  and  regarded  the 
former  as  the  sanction  of  the  latter.  He  separated  the 
office  of  philosopher  from  that  of  jurist,  and  conse- 
quently recognized  a  law  of  humanity  distinct  from  that 
which  is  evolved  from  the  various  circumstances  of  time, 
place,  and  need.  Melanchthon,  who  wrote  books  of 
moral  philosophy,  as  OLENDORP  and  WINKLER  wrote 
books  of  natural  law  (full  of  positive  religious  data  and 
without  scientific  base),  thought  that  man  could  not 
know  absolute  truth;  that  he  should  remain  within  the 
confines  of  experience ;  and  that  he  should  follow  not  only 
virtue  but  also  life  and  the  good  things  of  life  —  that 
is,  matrimony,  society,  and  the  well-ordered  pleasures 
which  the  gods  concede  to  men. 

In  the  first  period  of  the  Renaissance,  Greek  thought 
was  reconstructed  by  direct  interpretation  from  its 
sources,  diluted  by  Christian  elements  added  in  the 
Middle  Ages.  Marcello  FICINO  and  the  Florentine 
Academy  represent  the  return  to  Plato.  Pompanazzi 
represents  the  return  to  Aristotle.  The  Latin  com- 
mentary on  the  works  of  the  Stagirite  was  laid  aside, 
and  the  Arabian  of  AVERROES  and  the  Greek  of  ALEXANDER 
of  Aphrodisias  were  used.  The  first  tends  to  the  trans- 
cendence of  the  intellect,  to  its  existence  separate  and 
independent  of  the  body;  the  second  to  the  immanence 
of  thought  as  an  intrinsic  form. 

After  this  period  of  the  reconstruction  of  the  Greek 
philosophy,  comes  that  in  which  there  is  a  tendency  to 


16  INTRODUCTORY  SURVEY 

open  a  new  life  to  the  speculative  spirit.  TELESIUS,  the 
first  of  the  new  men,  as  Bacon  called  him,  did  not 
follow  theological  or  Aristotelean  principles  but  con- 
sidered the  nature  of  things  according  to  principles  of 
his  own.  For  him,  all  knowledge  was  a  derivative  of 
sense,  which  was  connected  with  motion.  Everything 
in  nature  was  reducible  to  matter  and  force.  Force  was 
shown  in  the  heat  of  the  sun  and  the  cold  of  the  earth ; 
heat  was  confused  with  motion. 

BRUNO  and  CAMPANELLA  are  the  greatest  philosophers 
in  this  second  period,  and  are  authors  of  a  new  philosophy 
very  different  from  the  Aristotelean.  Bruno  brought 
to  life  the  principle  of  the  infinity  of  nature.  Accord- 
ing to  him,  all  is  God-Nature;  God  outside  the  world 
is  left  to  the  theological  believers;  the  universe  is  the 
infinite  creature  of  an  infinite  creator,  who  is  infinite  in 
his  complications  and  in  his  sum,  while  it  is  explicitly 
but  not  totally  infinite.  Individual  things  are  mere 
figures  or  accidentals.  The  ethical  doctrine  of  Bruno 
is  lighted  by  the  divine  intellectual  sun  of  truth,  the  sub- 
stance of  moral  action  and  of  morality,  which  it  pene- 
trates as  a  temporal  power  or  prudence.  Law  should 
be  informed  by  reason  and  should  result  in  utility. 
Government  is  strength ;  the  act  of  the  law  is  judgment 
or  legal  punishment,  which  should  not  condemn  words 
or  acts  that  do  not  affect  the  tranquility  of  the  State. 

Campanella,  as  a  metaphysician,  thinks  that  nature, 
if  not  itself  God,  is  certainly  his  living  image.  As  a 
psychologist,  his  motive  is  sense,  and  he  recognizes  its 
final  connection  with  motion.  He  distinguishes  the 
"sensus  abditus"  from  the  "sensus  additus,"  in  that  one 
is  native  and  occult,  and  the  other  derivative.  He 
says  that  intellect  is  languid  and  rarified  sense.  The 
"sensus  additus,"  that  is,  concrete,  determinate  sense, 
is  founded  on  the  original,  "sensum  abditum."  He 


THE  RENAISSANCE  17 

writes,  "Nos  esse  et  posse,  scire  et  velle,  certissimum 
principium  primum."  Campanella,  however,  recog- 
nizes the  divine  more  in  religion  than  in  nature.  He 
believes  in  progress,  but  in  a  theocratic  manner,  admit- 
ting community  of  possessions  and  of  women,  the  gov- 
ernmental control  of  marriage,  and  the  control  of 
society  as  an  institution  (whence  the  frugality  and 
poverty  of  the  Solari),  and  he  would  govern  the  world 
as  a  kind  of  universal  pontifical  monarchy. 

God  is  revealed  not  only  in  religion  but  in  nature  as 
well,  according  to  the  Neo-Platonists;  at  whose  head  is 
Ficino.  Nature  therefore  is  not  only  the  means  for  the 
action  of  God  but  comprehends  divine  virtues  and  prop- 
erties, which  are  open  to  the  knowledge  and  utility  of 
man.  Theosophy  is  the  knowledge  of  God,  in  that  it 
is  founded  on  a  knowledge  of  nature.  Nature  is  the 
grand  mystery,  the  key  to  which  is  the  Cabala.  This 
has  been  defined  as  the  Jewish  gnosis.  The  gnosis 
(whatever  be  its  religious  content)  considers  fact  as  a 
veil  under  which  the  idea  is  hidden,  and  the  value  of 
such  content  is  its  explanation  of  the  world,  that  is  for 
speculative  intent.  The  Cabala  attests  the  presence 
of  the  divine  force  of  nature;  Magic  is  the  study  by 
which  man  tends  to  conquer  it.  Alchemy  studies  the 
elementary  occult  forces,  and  Astrology  tries  to  deter- 
mine the  influence  of  the  stars  on  human  acts. 

BODIN  works  to  acquire  an  exact  knowledge  of  the 
real  elements  of  Politics  and  of  the  utility  of  social 
order  without  searching  out  the  necessary  fundamentals. 
In  his  process  of  examination,  he  follows  Aristotle. 
Grotius  points  this  out,  saying  that  Bodin  converts 
morals  and  law,  at  his  own  free  will,  into  politics. 
He  deserves,  however,  the  honor  of  having  noted  the 
influence  of  climate  on  social  institutions  before  MONTES- 
QUIEU. This  does  not  show  (as  Filangieri  claimed)  that 


18  INTRODUCTORY  SURVEY 

Montesquieu  had  no  originality.  Many  have  held  that 
the  wise  legislator  should  note  the  influence  of  climate, 
and  among  them  are  Plato  and  Aristotle,  as  well  as 
Bodin;  but  none  like  Montesquieu  made  it  the  basis  of 
his  system. 

In  this  epoch,  in  which  the  criticism  of  Scholastic 
hypotheses  was  strengthened  and  high  consideration 
was  given  to  nature,  the  State  was  no  longer  looked 
upon  as  an  entity  without  ethical  qualities,  as  an  insti- 
tution of  fratricide  and  the  result  of  sin;  nor  yet  as  a 
means  at  the  disposition  of  the  Church  for  the  destruc- 
tion of  heresy.  Its  object  was  not  terrestrial  virtue, 
dependent  upon  celestial  virtue,  neither  was  it  a  body, 
in  respect  to  the  Church,  which  was  likened  to  mind; 
but  was  considered  as  an  aggregate  of  forms,  whose 
combination  and  disintegration  was  studied  by  Machia- 
velli  as  a  natural  human  institution,  which  contained  in 
itself  that  divine  principle  existing  in  the  world.  The 
State  existed  of  itself,  and  had  no  need  of  being  con- 
nected with  the  Church  to  become  legitimate.  It  was 
a  complex  of  forces,  the  centre  of  which  was  the  king 
and  later  civil  society.  It  took  the  form  of  an  absolute 
monarchy  and  was  a  factor  in  the  development  of  nation- 
ality; except  in  Italy,  where  those  obligations  towards 
the  Church,  which  Machiavelli  records,  were  too  strong 
for  it. 


BACON,  DESCARTES,  GROTIUS  19 

IV 
BACON,  DESCARTES,  AND  GROTIUS 

Modern  philosophy,  the  daughter  of  the  Renaissance, 
was  born  of  doubt.  Its  chief  founders,  BACON  and 
DESCARTES,  sought  for  a  secure  basis  of  knowledge,  free 
from  the  doubt  of  the  ancient  hypotheses. 

BACON  placed,  over  against  the  Aristotelean  Organ,  the 
"Novum  Organum,"  in  which  induction,  as  the  primal 
factor,  acquires  a  new  experimental  character.  Man,  in  his 
opinion,  could  not  conquer  nature  without  a  knowledge 
of  her  laws,  without  interpreting  her.  And  the  inter- 
pretation of  nature  demanded  experience.  Experience 
should  be  free  from  all  that  the  mind  introduced  therein 
of  itself;  that  is,  from  prejudices  or  dogmas.  It  should 
use  the  form  of  induction,  based  on  facts  in  which  the 
law  of  the  phenomena  was  exemplified;  such  a  fact  is 
called  by  Bacon  a  prerogative  instance. 

DESCARTES  to  reconstruct  science  turned  to  thought. 
He  followed  a  movement  opposed  to  that  of  Bacon. 
For  Descartes,  the  senses  are  not  true  witnesses;  the 
only  indubitable  knowledge  of  existence  itself  is  from 
the  "cogito  ergo  sum."  This  knowledge,  which  is  primal, 
is  clear,  because  the  ego  is  present  to  itself;  and  is  dis- 
tinct, because  thought  is  the  characteristic  by  which 
the  ego  differs  from  all  other  entities.  From  this  primal 
knowledge,  from  the  knowledge  of  self-existence,  are  born 
through  deductive  processes  all  cognitions.  Science 
always  exists  where  a  clear  and  distinct  knowledge  of 
things  can  be  had ;  the  mind  doubts,  because  it  is  imper- 
fect. If  it  believes  itself  imperfect,  it  must  have  the 
idea  of  the  perfect  or  infinite.  If  it  has  the  idea  of  the 
infinite,  it  means  that  an  infinite  cause  has  impressed  it. 


20  INTRODUCTORY  SURVEY 

Inherent  are  the  ideas  of  the  ego  and  of  God;  acquired 
are  the  ideas  that  man  forms,  whose  cause  lies  outside 
of  him.  The  representations  that  refer  to  external 
objects  are  not  entirely  derivative  from  bodies,  because 
there  is  in  them  some  of  our  methods,  for  example, 
color,  smell,  sound,  and  taste.  Extension  alone  is  not 
one  of  our  methods,  but  rather  the  very  essence  of  ex- 
ternal nature.  Thought  is  spirit,  extension  is  body; 
the  spirit  is  active  and  the  body  inert. 

Bacon  wishes  to  transform  by  experience  the  natural 
and  moral  studies;  yet  with  the  latter  he  occupies  him- 
self little.  He  inclines  to  the  thought  that  the  moral 
and  political  sciences  are  founded  on  belief,  and  not 
directly  on  fact;  and  that  the  duty  of  public  law  is  not 
only  to  protect  private  law,  but  to  take  care  of  the  edu- 
cation and  welfare  of  the  citizens.  Bacon's  political 
doctrine,  which  follows  a  line  between  moral  principle 
and  legislation,  and  is  contrary  to  an  ideal  type  of  abso- 
lute perfection  of  society,  looks  to  mutual  intercourse, 
trade,  and  the  commonwealth.  In  his  theory  of  mutual 
intercourse,  there  is  a  noticeable  confusion  of  the  right 
of  society  in  its  relation  to  law  with  the  right  of  society 
in  its  relation  to  education;  in  that  of  trade,  there  is 
much  erudition  and  many  maxims  of  prudence.  In  his 
third  book,  he  does  not  speak  of  <the  preservation  of  the 
kingdom  and  of  the  method  of  making  it  happy,  but  of 
the  manner  of  extending  its  boundaries.  It  must  not  be 
forgotten  that  the  book  was  dedicated  to  the  King  of 
England.  The  Chancellor's  treatise  on  the  sources  of 
law  is  a  study  not  so  much  philosophical  as  practical, 
containing  wise  precepts  for  legislation  and  entirely 
dominated  by  a  political  principle.  With  this  understood, 
it  is  manifest  that  Francis  Bacon  should  not  be  ranked 
(as  Lampredi  ranked  him)  among  the  writers  on  natural 
law. 


BACON,   DESCARTES,  GROTIUS  21 

Descartes  considered  God  as  the  principle  of  thought, 
the  extension  of  knowledge  and  motion.  In  man,  the 
unity  of  spirit  and  body  is  brought  about  in  the  passions 
that  owe  their  origin  to  both.  Ethics  aim  to  free  man 
from  the  sway  of  the  passions.  Freedom  cannot  be 
gained  without  a  true  knowledge  and  comprehension 
of  them.  Bruno  had  here  foreshadowed  this  epoch  by 
his  idea  of  Ethics  founded  on  reason,  and  of  a  freedom 
of  the  soul  (as  mind)  from  its  union  of  God. 

With  the  Cartesian  philosophy,  this  new  and  great 
movement  which  puts  thought  at  the  head,  free  from 
external  and  traditional  elements,  as  the  source  of  the 
honest  and  the  just,  and  as  the  measuring  rod  of  the 
legitimacy  of  social  institutions,  is  brought  to  the  fore 
and  given  a  conspicuous  position.  This  thought  is 
abstract.  It  is  first  looked  upon  as  a  faculty  of  the  indi- 
vidual man,  and  interpenetrates  with  the  will  of  others. 
The  principle  of  subjectivity  is  the  foundation  of 
modern  philosophy,  whose  motive  is  either  thought  or 
experience.  Experience  is  resolved  into  external  sen- 
sations, into  pleasures  and  pains,  into  the  utilities  of 
man,  conceived  as  an  individual;  for  the  sensations 
are  essentially  individual.  In  experience,  the  subject 
prevails,  as  sense  or  tendency  to  pleasure,  aided 
by  hedonistic  calculations.  The  principle  of  subjec- 
tivity was  manifest  also  in  the  Reformation,  which 
emancipated  the  religious  consciousness  and  recognized 
the  rights  of  the  individual  soul.  And  it  is  seen  in  all 
the  series  of  attempts  made  by  the  individual  to  obtain 
at  least  his  liberty,  in  these  latter  days.  The  indi- 
vidual, absorbed  by  the  community,  reasserts  himself, 
opposes  it,  and  believes  that  he  is  its  origin  and  end; 
imagining  even  that  he  has  lived  without  it  (that  is, 
in  a  hypothetical  state  of  nature).  At  this  point  the 
ethico- juristic  system  begins,  which  is  called  the 


22  INTRODUCTORY  SURVEY 

"theory  of  natural  law";  for  it  is  founded  on  the  reason 
and  experience  of  man  more  as  an  individual  than  as  a 
society. 

Hugo  GROTIUS  is  the  author  of  this  system.  Though 
partly  foreshadowed  by  Bruno,  he  deserves  credit  for 
his  lucid  conception  of  a  primitive  and  natural  juris- 
prudence founded  on  reason  itself,  immutable,  the 
source  of  every  other  jurisprudence.  It  was  a  time  when 
the  jurists  venerated  Roman  Law  as  written  reason — 
when  the  politicians  publicly  appealed  to  the  right  of 
might  —  when  the  Catholic  theologians  hoped  to  destroy 
royal  power  in  favor  of  divine  papal  authority,  by 
deriving  the  former  from  the  people  —  when  the 
Scholastics  continued  to  weave  subtleties  —  and  when 
the  Protestant  theologians  endangered  human  freedom. 

Grotius  developed  the  principles  of  the  new  science  by 
treating  the  important  subject  of  peace  and  war.  Here 
the  sad  effects  of  an  ignorance  of  the  law  of  nature  are 
more  deplorable  than  elsewhere.  He  begged  those  who 
could  remedy  this  miserable  state  of  affairs  to  read  his 
book  and  learn  his  new  ideas.  The  first  writers  on  the 
rights  of  war  who  had  been  illumined,  as  it  were,  by  the 
light  of  the  law  of  reason,  were  the  Milanese  Giovanni 
DI  LIGNANO,  Giovanni  LUPO  of  Segovia  (theologians 
whom  Grotius  mentions),  Martino  GARATI  of  Lodi, 
and  Pietro  BELLINI  (counselor  of  the  Duke  Emanuele 
Filiberto  of  Savoy,  of  Francis  Ariasdemesa,  and  of  the 
Neapolitan  Paris  del  Pozzo),  all  four  of  whom  were 
jurisconsults,  and,  above  all  others,  Alberico  GENTILE 
(of  whom  Grotius  makes  honorable  mention).  Gentile 
was  the  first  to  formulate  a  system  of  rules  of  warfare, 
and  to  separate  the  notion  of  war  and  religion,  placing 
the  former  within  the  rigorous  limits  of  law.  However, 
the  law  thought  of  by  him  is  Roman  and  not  rational. 
Furthermore,  he  keeps  his  eyes  on  the  single  fact  of  war 


BACON,  DESCARTES,  GROTIUS  23 

and  pays  little  attention  to  peace,  the  normal  condition 
of  humanity,  so  that  he  cannot  put  a  just  valuation  on 
the  former. 

Grotius  defines  natural  law  as  the  sum  of  the  principles 
of  right  reason  by  which  we  discern  the  wrongness  or 
rectitude  of  an  action,  through  the  discordance  or  agree- 
ment of  the  action  itself  with  rational  and  social  nature. 
The  mother  of  natural  law  is  human  nature  itself,  which 
prompts  us  to  seek  intercourse  with  our  fellow-beings. 
Natural  law  is  immutable;  it  would  exist  even  on  the 
hypothesis  of  the  non-existence  of  God  (to  conceive  of 
which  is  a  horrible  crime).  Law  in  its  broad  sense  em- 
braces morals;  and  law  in  the  strict  sense  includes 
imperfect  and  perfect  right,  capacities,  and  merits.  It  is 
distinguished,  however,  from  the  art  of  allotting  just 
rewards  to  things  pleasant  and  unpleasant,  useful  and 
harmful,  present  or  future  —  that  is,  from  politics. 
This  distinction,  indeed,  between  law  and  politics  had 
been  made  clearly  (although  incompletely)  some  years 
before  Grotius,  by  the  Cosentine,  Giovanni  DA  PALAZZO 
in  his  book  on  Government  and  the  true  rationale  of 
the  State. 

Natural  law,  however,  is  conceived  by  Grotius 
solely  as  the  right  of  individual  man.  Individual  prop- 
erty, as  following  the  primitive  community  of  goods, 
is  based  by  him  on  an  express  or  tacit  agreement.  Intes- 
tate inheritance  is  based  on  the  natural  estimate  of  the 
will  of  the  deceased.  From  the  field  of  private  law  it 
enters  that  of  the  State  through  contract.  It  is  the  duty 
of  natural  law  to  protect  agreements;  those  who  con- 
stitute the  State  promise  by  express  or  tacit  agreement 
to  obey  the  majority,  to  whom  the  power  is  given. 
Obligation  by  consent  is  the  basis  of  all  civil  law, 
according  to  the  teachings  of  Grotius.  The  State,  a 
perfect  body  of  free  persons,  united  for  the  purpose  of 


24  INTRODUCTORY  SURVEY 

enjoying  their  own  rights  through  a  common  utility, 
is  the  people,  affecting  a  stability  of  powers  and  obli- 
gations in  a  republic  or  an  empire.  The  common  sub- 
ject of  sovereignty  is  the  State;  political  forms  are 
derived  from  common  consent.  From  the  consent  of 
the  criminal,  given  implicitly  by  the  criminal  act,  arises 
the  right  of  punishment.  There  are  laws  and  powers 
making  for  the  exclusive  advantage  of  certain  classes. 
There  is  an  international  law  common  to  all  nations. 
The  free  development  of  the  rights  of  society  demands 
free  trade;  therefore  the  prohibition  of  the  entrance 
of  any  product  into  a  country  is  a  just  cause  of  war  on 
the  part  of  the  importing  nation.  A  people  cannot 
prohibit  the  free  transit  of  foreign  merchandise  since 
it  should  not  place  obstacles  in  the  trade  between 
nations.  But  the  consent  of  nations  justifies  the  restric- 
tions of  custom-houses  or  the  prohibition  of  importa- 
tion. The  sea  is  free,  for  physical  and  moral  reasons. 
This  double  reason  ceases  in  the  case  of  a  body  of  water 
lying  entirely  within  one  nation's  boundaries. 


HOBBES,  SPINOZA,  LEIBNITZ  25 

V 

HOBBES,  SPINOZA,  AND  LEIBNITZ 

HOBBES,  LOCKE,  BERKELEY,  and  HUME  agree  with  the 
philosophy  of  Bacon. 

HOBBES  admits  only  matter  and  motion;  reduces 
thought  to  sense;  and  derives  sense  from  motion.  He 
accounts  for  the  whole  life  of  the  spirit  by  the  external 
laws  of  association;  thus  he  is  looked  upon  by  LEWES 
and  the  modern  psychologists  of  association  as  their 
earliest  predecessor.  Like  Grotius,  he  begins  with  the 
nature  of  man;  but  he  differs  from  Grotius  in  saying 
that  it  is  founded  on  egoistical  tendencies  and  not  on 
the  social  desire  for  the  general  good.  Society  is  sought 
through  self-love,  not  through  love  of  others.  The 
origin  of  the  great  and  enduring  societies  is  not  recip- 
rocal benevolence  but  reciprocal  fear.  In  the  state  of 
nature,  there  was  a  constant  struggle,  every  man  against 
his  neighbor,  through  cupidity  and  the  inter-collision 
of  rights;  for  each  man  had  a  right  to  everything.  Now 
the  law  of  nature  is  the  instinct  of  self-preservation ;  thus 
was  felt  the  need  of  growing  out  of  this  state  of  inse- 
curity and  of  finding  peace.  Unlimited  fear  forced  men 
to  transfer  by  agreement  all  their  rights  and  powers 
to  a  civil  committee;  this  is  the  origin  of  the  civil  con- 
tract. Thus  an  absolute  empire  was  formed,  destined 
to  define  the  honest  and  the  just,  and  to  decree  what 
must  be  believed.  Honesty,  justice,  and  religious  beliefs 
are  the  product  of  social  laws.  Hobbes,  like  Grotius, 
believes  in  the  principle  of  human  nature  in  its  individual 
form,  and  makes  everything  depend  on  contract  —  the 
begetter  of  natural  law. 

LOCKE  combats  the  innatism  of  Descartes.     He  tries 


26  INTRODUCTORY  SURVEY 

to  prove  that  the  intellect  is  a  blank  tablet  ("tabula 
rasa")  on  which  the  senses  print  characters.  Our  ideas  are 
born  of  sensation  and  reflection;  reflection  elaborates 
the  data  of  sensation,  uniting,  separating,  abstracting, 
and  generalizing.  The  idea  of  substance  is  a  collective 
idea  and  does  not  express  entity  because  we  perceive 
only  the  methods  —  the  ego  is  found  by  reflection  only 
in  its  world  of  thought  and  not  in  substance.  The 
entity  of  the  ego  lies  in  the  continuity  of  representations 
and  not  in  its  real  unity.  If  there  are  substances  (and 
perhaps  there  may  be),  they  must  remain  unknown 
and  unrecognizable  to  us.  Locke  makes  the  validity  of 
conduct  consist  in  the  conformity  or  non-conformity 
of  an  action  to  the  law,  which  operates  through  the  power 
of  the  law-giver,  to  punish  or  reward  us.  He  departs 
from  the  hypothesis  of  the  state  of  nature,  in  which 
there  arises  (his  philosophy  differing  here  from  that 
of  the  other  philosophers)  a  comprehensive  system  of 
rights  to  life,  liberty,  and  property,  and  of  punish- 
ment (to  a  limited  extent,  a  power  of  the  individual). 
In  his  opinion,  the  State  grows  out  of  contract  and  makes 
for  the  protection  of  the  individual.  He  admits  the  prin- 
ciple of  the  sovereignty  of  the  people,  as  a  consequence 
of  which  he  thinks  that  the  people  should  make  the 
laws  and  the  princes  obey  them.  Finally,  he  believes 
in  the  separation  of  Church  and  State. 

Locke's  division  of  power  into  legislative  and  execu- 
tive, the  former  belonging  to  the  people  and  the  latter 
to  the  kings,  leads  to  the  constitutional  doctrine  which 
was  soon  to  be  formulated  by  Montesquieu.  This 
philosopher,  who  outlined  the  perfect  mechanism  of  the 
elements  of  representative  government,  as  exemplified 
in  the  English  Constitution,  was  the  first  to  propound 
the  theory  of  the  division  of  powers  into  legislative, 
executive,  and  judiciary,  with  its  corollary  that  one 


HOBBES,  SPINOZA,   LEIBNITZ  27 

power  would  restrain  the  other,  acting  reciprocally  as 
check  and  countercheck.  He  is  also  the  creator  of  his- 
torical climatology;  but  he  exaggerated  its  significance; 
for  (as  Comte  said)  Montesquieu  failed  to  perceive  that 
in  some  instances  history  shows  variations,  while  climate 
remains  uniform;  and  he  thus  lacked  a  true  conception 
of  progress.  Montesquieu  did  not  concern  himself  with 
the  philosophy  of  law;  yet  his  book  is  one  wherein  (as 
he  says)  every  nation  can  find  the  reasons,  on  which 
its  maxims  of  jurisprudence  are  based.  Of  the  work 
of  Grotius,  so  popular  in  his  day,  Montesquieu  makes  no 
mention;  and  in  the  three  places  in  the  "L'Esprit  des 
Lois,"  in  which  he  speaks  of  natural  law,  he  is  really 
treating  of  morals. 

Locke  bases  knowledge  on  perception;  he  teaches 
that  we  learn  only  the  methods;  he  lays  stress  upon  the 
objects  whose  substance  we  cannot  perceive.  BERKELEY 
is  more  coherent.  For,  starting  with  the  premises  of 
Locke,  he  shows  that  basically  only  ideas  are  real  and  not 
things,  because  the  reality  of  the  former  is  created  by 
our  very  perception.  The  true  being  of  things  is  its 
perception,  and  in  the  perception  lies  their  reality. 

HUME  completes  the  work  of  Locke  and  Berkeley, 
making  a  criticism  of  the  concept  of  causality.  In  his 
opinion  causality  is  not  an  object  of  sensation,  percep- 
tion, nor  deduction.  It  is  not  an  object  of  perception, 
because  it  lacks  a  corresponding  impression,  experience 
giving  us  the  simple  conjunction  of  two  facts  and  not 
their  connection.  Neither  can  it  be  discovered  by  the 
analysis  of  a  concept,  because  this  includes  logical 
notes  and  not  existence.  In  other  words,  one  cannot 
discover  the  real  existence  of  the  effect  from  the  mere 
causal  conception;  that  is  a  logical  proof  but  nothing 
more.  On  the  other  hand,  it  is  not  a  subject  for  deduc- 
tion, because  there  is  no  medial  term  between  cause 


28  INTRODUCTORY  SURVEY 

and  effect.  Causality,  therefore,  has  no  scientific  value, 
and  we  must  doubt  everything  except  mathematics, 
because  everything  presupposes  a  cause,  with  that  one 
science  excepted.  Causality  rests  in  habit,  in  dogma, 
and  in  expectation.  With  the  repetition  of  one  fact  in 
sequence  to  another,  we  believe,  or  have  faith  that  the 
first  is  the  cause,  the  latter  the  effect.  Even  if  this 
dogma  or  expectation  has  no  theoretical  value,  it  is  a 
more  than  sufficient  norm  for  life  and  conduct. 

MALEBRANCHE,  SPINOZA,  and  LEIBNITZ  are  followers 
of  the  Cartesian  philosophy.  In  the  mind  of  Descartes, 
the  idea  of  God  was  innate  in  the  human  soul.  Male- 
branche,  the  Cartesian  Averroes,  again  puts  the  origin 
of  thought  in  a  region  outside  of  man  and  affirms  that 
knowledge  is  an  intuitive  influent,  a  vision  of  the  idea 
of  God.  Extension,  opposed  to  thought,  is  thinkable 
because  it  is  seen  in  God.  God  is  the  sole  cause  that 
works  in  reality;  his  creatures  are  occasions  of  divine 
action.  Thinking  that  truth  lies  in  God,  we  can  love 
and  work  with  Him.  Man  should  take  for  a  norm  of 
his  conduct  the  relations  of  perfection  that  exist  in  things; 
relations  constituting  the  content  of  that  love  with 
which  God  loves  Himself. 

SPINOZA  tries  to  reconcile  the  opposition  between  sub- 
stances of  extension  and  of  thought  (which  Descartes 
admits,  and  which  Malebranche  believes  eliminated 
by  the  intuition  of  extension  in  God)  by  the  presup- 
position of  a  single  substance  of  which  thought  and 
extensions  are  attributes.  He  unites  extension  and 
thought  in  a  single  unity,  which  is  indifferent  of  itself, 
in  substance  or  nature,  and  includes  all  reality  (as  the 
Cartesian  philosopher  says  that  the  idea  of  substance 
involves  its  existence).  Substance  is  active,  self-causal, 
and  develops  in  the  two  infinite  attributes  of  extension 
and  thought.  Each  of  the  attributes  expresses  sub- 


HOBBES,  SPINOZA,  LEIBNITZ  29 

stance  of  its  own  mode,  through  an  infinity  of  methods. 
Each  is  unconnected  with  the  other.  The  modes  of 
the  two  attributes  have  no  reciprocal  causality,  but 
correspond  and  are  parallel.  Substance,  with  the  two 
attributes,  is  "natura  naturans,"  and  the  universe  is 
"natura  naturata"  and  is  also  infinite,  while  the  par- 
ticulars are  simple  modes.  Substance  is  not  determined 
by  anything  but  itself.  It  is  free ;  man  is  not  free  because 
he  is  a  mode  limited  and  determined  by  other  modes. 
Man  is  a  natural  force  with  the  illusion  of  freedom. 
The  modes,  particular  objects,  are  ideas  and  bodies. 
We,  qua  spiritual,  are  the  cause  of  ideas,  and  qua  cor- 
poreal, are  the  cause  of  passions.  In  respect  to  ideas, 
we  are  active,  if  they  are  adequate  and  fully  comprehend 
their  object;  in  respect  to  passions,  we  are  passive 
because  they  are  derivatives  of  our  and  other  bodies ; 
and  of  neither  one  nor  the  other  have  we  full  conscious- 
ness. Passivity  consists  always  of  inadequacy,  obscu- 
rity, and  confusion  of  ideas.  Man,  qua  mind,  is  free 
from  sentiments,  affections,  and  passions,  because  he 
knows  God  and  the  necessary  connections  of  things, 
reaching  adequate  cognition  by  love  of  God. 

Every  entity  strives  for  the  preservation  of  its  exist- 
ence; man  also  has  this  tendency,  in  which  the  ethical 
principle  is  found.  Law  is  the  power  of  the  nature  of 
man,  that  is,  the  force  by  which  he  perseveres  in  his 
existence.  The  law  of  nature  is  the  very  power  of  nature. 
Man's  right  is  equal  to  his  power  as  a  cause  or  force. 
The  greater  union  gives  greater  force,  and  therefore 
greater  right;  whence  the  great  power  of  the  State, 
the  result  of  the  alienation  of  the  powers  of  many.  The 
object  of  the  State  is  to  stop  the  terrible  struggle  between 
men  due  to  their  conflicting  passions  and  interests. 
It  is  founded  on  agreement;  but  this  does  not  result,  as 
Hobbes  says,  in  the  transference  of  all  the  rights  of 


30  INTRODUCTORY  SURVEY 

the  individual  to  the  State;  for  whatever  is  not  subject 
to  force  does  not  become  subject  to  the  State  (acts, 
therefore,  can  be  controlled,  but  neither  opinions  nor 
creeds). 

LEIBNITZ  tries  to  reconcile  the  Cartesian  dualism  be- 
tween the  substances  of  thought  and  extension  (which 
Spinoza  attempted  to  eliminate  through  the  principle 
of  one  substance  with  two  infinite  attributes) .  He  shows 
that  all  substances  are  forces,  and  therefore  active  and 
not  inert.  He  believes  that  all  substances  are  represen- 
tative, in  that  they  are  the  result  of  monads,  which 
are  not  physical  atoms,  but  metaphysical  points,  unex- 
tended  elements,  unmodelled,  indivisible,  indestructible, 
impenetrable,  and  capable  of  perception  and  repre- 
sentation. Each  monad  is  a  simple  force  with  a  special 
original  determination,  not  derived  from  without, 
having  within  itself  the  representative  scheme  of  the 
universe.  Bruno,  the  author  of  the  monad  theory, 
known  to  Leibnitz,  says  that  each  monad  is  a  contracted 
universe.  A  monad  as  an  active  substance  represents 
itself,  and  as  an  individual  and  limited  substance  it 
represents  the  others.  In  the  doctrine  of  Leibnitz, 
there  is  not  one  substance  but  as  many  substances  as 
there  are  forces. 

From  substance,  which  is  the  whole,  he  contradis- 
tinguishes the  simple  monad,  with  its  representative  vir- 
tue, developing  through  three  progressive  grades.  For 
representation  begins  with  simple  and  obscure  being, 
it  becomes  clear  when  joined  with  sensation,  and  distinct 
when  accompanied  by  knowledge.  The  power  of  the 
monad  to  pass  from  one  conception  to  another  is  con- 
nected with  this  graduation.  This  power  is  a  special 
activity  in  living  beings,  instinct  in  animals,  will  in 
man.  In  the  monad,  there  is  a  continuity  of  states. 
In  the  spirit  monad,  the  state  of  conscious  knowledge 


HOBBES,  SPINOZA,  LEIBNITZ  31 

is  a  derivative  of  the  state  of  unconsciousness  and  there- 
fore the  will  is  determined  by  the  unconscious  states 
and  cannot  be  caprice.  The  life  of  the  spirit  is  that  grad- 
ual passage  by  infinitesimal  steps  from  unconscious- 
ness to  clear  and  distinct  knowledge.  Each  monad 
has  a  special  disposition  peculiar  to  it  frorn  the  beginning; 
it  contracts  the  universe  in  its  own  manner,  and  in  con- 
formity with  its  disposition,  it  develops  through  a  con- 
tinuous succession  of  states.  No  monad  is  born  of 
another  or  exerts  any  influence  over  another,  but  between 
them  there  is  a  fixed  harmony  from  God. 

Mind  presupposes  (teaches  Leibnitz)  sensible  repre- 
sentation, but  is  not  its  cause.  It  is  not  a  blank  tablet, 
but  rather  a  containing  energy  —  virtually  the  principles 
of  identity  and  of  sufficient  reason,  distinguished  as 
causality  and  finality.  The  identity  looks  to  the  monad 
in  itself.  The  sufficient  reason  has  to  do  with  the 
harmony  between  all  the  monads.  The  principle  of  the 
sufficient  reason  is  the  base  of  the  concrete  sciences, 
and  therefore  of  morals  and  law.  The  spirit  is  mind  and 
will ;  will  is  a  conscious  tendency  and  makes  for  happiness. 
Through  clear  and  distinct  cognition,  the  spirit  feels 
that  it  is  an  element  in  a  great  whole  and  that  it  has  the 
duty  of  acting  so  as  to  further  the  common  good.  Only 
through  clear  and  distinct  knowledge  comes  the  tendency 
to  the  generally  useful.  Law  is  founded  on  the  essence 
and  not  on  the  will  of  God,  and  is  manifest  in  the  form 
of  rigid  law,  of  equity,  and  probity.  The  first  consists 
in  commutative  justice  and  is  founded  on  the  precept 
of  "Do  no  wrong."  The  second  is  based  on  distributive 
justice  and  on  giving  each  his  due.  The  third  is  connoted 
by  the  maxim  of  "Live  honestly."  The  object  of  law 
is  perfection.  Every  kind  of  community  proposes  the 
happiness  of  man  as  its  object,,  The  State  looks  espe- 
cially to  the  good  of  external  security.  The  practical 


32  INTRODUCTORY  SURVEY 

idealism  of  the  Leibnitzian  system  consists  in  a  commun- 
ity of  spirits  in  immediate  dependence  on  God,  placed  in 
the  sphere  of  morals,  with  concentric  circles  comprehen- 
sive of  rights.  It  resembles  the  Stoic  Republic.  Chris- 
tian principles  interpenetrate  with  Greek  philosophy  in 
an  attractive  manner;  but  we  must  remember  that  Leib- 
nitz began  with  pure  rationalism  and  then  turned  to 
eudemonism,  and  ended  in  the  confusion  of  morality 
and  religion. 


PUFFENDORF,  WOLFF,  ROUSSEAU          33 

VI 

PUFFENDORF,  THOMASIUS,  AND  WOLFF 
ROUSSEAU 

PUFFENDORF,  who  coupled  in  a  somewhat  arbitrary 
manner  to  the  Cartesian  philosophy  his  theory  of  natural 
law  and  of  the  law  of  nations,  makes  clear  the  psychologi- 
cal basis  of  law  and  the  theory  of  imputation  (erstwhile 
the  doctrine  of  Grotius).  But  his  development  of  his 
doctrine  is  neither  profound  nor  exact;  because  he 
pleads  especially  for  the  interpretation  of  the  social 
instinct  (admitted  by  Grotius),  not  as  benevolence 
but  as  common  need,  and  because  of  his  confusion 
of  morals  and  law  (not  found  in  the  works  of  Grotius) 
and  his  tri-division  of  morality  into  duties  towards 
God,  our  neighbors,  and  ourselves.  Puffendorf's  con- 
ception of  law  is  inferior  to  that  of  Grotius,  because 
law  and  all  that  is  honest  depend,  according  to  him,  on 
the  will  of  God  and  on  divine  imposition.  Leibnitz 
does  not  think  highly  of  this  philosopher  and  very 
seldom  mentions  him  in  his  work  on  natural  law.  The 
followers  of  Puffendorf  are  BARBEYRAC,  BURLAMAQUI, 
and  DE  FELICE.  Barbeyrac,  a  most  erudite  man  (of 
whom  it  was  said,  in  looking  at  his  notes  on  Puffendorf 
and  Grotius,  that  it  was  difficult  to  decide  whether 
greater  genius  was  required  for  the  creation  of  the 
systems  than  for  their  annotation)  is  not  clear  in  his 
understanding  of  rational  law,  though  he  gives  it  a 
new  development  and  illustrates  scientifically  the  dif- 
ference between  morals  and  law.  In  Burlamaqui, 
we  find  traces  of  Barbeyrac,  and  a  blind  obsequiousness 
to  Puffendorf's  ideas.  De  Felice  is  distinguished  for  his 
writings  on  public  European  law  and  for  his  biblio- 
graphic notes  of  the  writers  on  the  philosophy  of  law; 


34  INTRODUCTORY  SURVEY 

but  he  adds  nothing  to  the  system  of  his  author  and 
principal  followers.  He  was  ignorant  of  the  attempts 
of  the  German  philosophers  to  distinguish  morals  and 
law,  begun  before  the  death  of  Burlamaqui. 

The  works  of  Grotius  and  Puffendorf  met  opposition 
on  all  sides.  The  Romanists,  even  more  irate  than  the 
theologians,  accused  the  philosophers  of  aiming  to 
create  for  equity  an  intellectual  dominion  over  the 
world's  greatest  achievement  —  that  is,  Roman  law; 
although  the  nature  of  this  cerebrine  equity  was  a  thing 
about  which  they  themselves  could  not  agree.  The 
theologians,  especially  the  Protestants,  confuse  rational 
research  in  law  with  atheism.  Both  make  much  of 
the  discords  of  the  schools  of  natural  law.  SELDEN, 
not  wishing  to  base  natural  law  on  reason,  states  that 
law  is  a  derivative  of  the  nature  of  God ;  that  it  is  partly 
obligatory  and  partly  permissive ;  and  that  the  divine 
laws,  which  all  must  obey,  are  revealed  in  the  Scrip- 
tures. Puffendorf,  LECLERC,  and  Barbeyrac  are  almost 
unanimous  in  their  criticism  of  Selden,  because  he  deduces 
the  principles  of  law  from  the  Decalogue  and  especially 
from  Judaic  tradition.  COCCEIUS  agrees  with  Selden 
for  polemic  reasons,  but  has  a  superior  principle,  from 
which  he  derives  juridical  precepts  directly  —  that  is,  the 
divine  will,  known  from  its  acts  or  inferable  from  the 
perfection  of  the  divine  essence,  without  reliance  on 
revelation. 

THOMASIUS  founds  law  on  reason,  independent  of  all 
revelation.  He  admits  a  state  of  nature,  which  was 
neither  a  state  of  war  nor  one  of  peace,  but  was  a  chaos. 
Human  actions  should  depend  upon  a  norm;  and  law 
is  the  norm  for  external  actions  and  the  guaranty  of  social 
peace.  Thomasius  avails  himself  of  the  three  grades 
of  law  made  by  Leibnitz  to  show  the  separation  of  law 
from  morals  in  his  belief  that  moral  duties  are  incoer- 


PUFFENDORF,  WOLFF,  ROUSSEAU         35 

cible  or  imperfect,  and  secure  internal  peace,  while  the 
legal  duties  are  coercible  or  perfect,  and  secure  external 
peace.  A  consequence  of  this  is  that  the  State  should 
abandon  the  moral  and  religious  sphere  to  free  conscience. 
Thomasius,  after  indicating  the  various  meanings  of 
the  phrase  "the  law  of  nations,"  observes  that  there 
cannot  be  a  true  law  among  nations,  because  there  is 
no  higher  authority  that  can  enforce  its  obligations. 
It  is  clear  that  in  this  he  differs  from  Grotius  and  takes 
a  backward  step. 

WOLFF  explains  philosophy  systematically  for  the  use  of 
the  schools,  and  follows  the  doctrines  of  Leibnitz.  He 
does  not  accept  all  of  them,  however,  without  some 
modifications;  for  example,  he  does  not  believe  that 
all  the  monads  have  representative  virtue  (which  accord- 
ing to  him  is  an  attribute  only  of  the  spirit  monad).  His 
ethical  principle,  the  result  of  an  organic  concept  of  the 
world  and  of  the  teachings  of  Leibnitz,  is  perfection. 
Wolff  speaks  of  perfect  and  imperfect  duties,  but  he  does 
not  define  their  difference.  He  does  not  supply,  like 
Thomasius,  a  criterion  for  their  separation  and  distinction. 
Morals  and  law,  therefore,  are  again  confused,  and 
science  from  that  point  of  view  takes  a  retrogressive  step. 
Wolff  thinks  that  he  derives  natural  law  from  the  human 
essence  by  a  rigorous  deduction.  The  law  of  nature 
imposes  the  duty  of  doing  all  that  tends  towards  the 
perfect  and  good.  Natural  law,  founded  on  the  nature  of 
man,  is  the  law  of  what  he  should  or  should  not  do. 
Natural  law  has  its  ultimate  foundation  in  God,  because 
God  is  the  author  of  the  order  of  things  or  of  the  order  of 
nature.  The  Wolfnan  principle  should  not  be  inter- 
preted in  a  too  individualistic  sense.  For  it  holds 
that  good  actions  tend  either  to  the  preservation  of  es- 
sential, or  to  the  acquisition  of  accidental  perfection,  or  to 
the  consummation  and  perfection  of  mankind,  more 


36  INTRODUCTORY  SURVEY 

especially  of  the  family,  nation,  or  State.  Wolff  and  his 
disciple,  VATTEL  (following  the  way  trodden  by  Grotius 
in  the  field  of  international  law)  assign  absolute  author- 
ity to  positive  law,  but  recognize  the  natural  law  of 
individuals  and  nations  as  its  source.  Among  the 
Italians,  LAMPREDI  believes  that  it  owes  its  origin  to  this 
source  (thus  following  Wolffian  doctrines).  He  goes  so 
far  as  to  say  that  if  a  law  between  armies  could  be 
defended,  his  pen  would  take  up  the  task,  and  cites  naval 
warfare  in  treating  of  the  great  principles  of  humanity. 
Lampredi  (like  Wolff)  supplies  no  criterion  of  the  differ- 
ence between  morals  and  law.  He  considers  natural  law 
as  the  comprehensive  formula  of  natural  laws,  tending 
towards  happiness  and  perfection,  but  he  does  not 
show  of  what  it  consists.  He  introduces  and  discusses, 
in  the  science  of  law,  hypotheses  and  theories  of  ethics, 
as,  for  example,  the  hypothesis  of  a  God  who  is  judge 
of  actions,  and  the  analysis  of  moral  imputability. 
Law,  in  Lampredi's  mind  (since  he  is  a  follower  of  Wolff), 
is  the  faculty  of  availing  oneself  of  what  is  necessary  for 
the  fulfillment  of  obligations  which  may  be  universal, 
primitive,  and  innate,  or  particular,  derivative,  and 
hypothetical.  Ownership  presupposes,  according  to 
both  authors,  a  positive  community  of  things,  and  owes 
its  origin  to  the  appetites  of  animal  life.  Lampredi  devel- 
ops the  doctrine  of  contract  in  exactly  the  same  manner 
as  Wolff,  in  the  discussion  of  society  as  a  consensual  con- 
tract, thus  opening  the  way  to  the  discussion  of  society 
in  general,  which  is  founded  on  the  consent  of  him  who 
creates  laws  and  government.  And  here  Lampredi's 
chief  error  is  apparent,  that  is,  his  failure  to  distinguish 
the  principles  of  public  from  private  justice;  an  error 
in  that  time  common  to  the  greater  number  of  writers  on 
natural  law. 

Hume  represents  the  complement  of  Baconian  philos- 


PUFFENDORF,  WOLFF,  ROUSSEAU          37 

ophy,  as  Leibnitz  represents  that  of  the  Cartesian. 
French  Sensualism  and  Materialism,  the  general  consen- 
sus of  the  Scotch  philosophers,  and  German  Syncretism 
of  the  past  century,  add  nothing  new  in  the  sphere  of 
speculation.  French  Sensualism  originated  in  the 
doctrine  of  GASSENDI,  a  contemporary  of  Bacon  and  Des- 
cartes. Gassendi  says  that  the  only  source  of  our  ideas 
is  sense;  that  the  certainty  of  our  being  is  not  born  of 
thought  only,  but  also  of  sensible  facts ;  but  he  can  form 
no  notion  of  substance.  Later,  after  Locke,  CONDILLAC 
reduces  to  mere  sensation  the  origin  of  consciousness, 
sensation,  and  reflection,  and  shows  that  the  life  of  the 
spirit  is  nothing  but  transformed  sensation.  BONNET 
and  HARTLEY  laid  stress  upon  the  sensations,  in  that 
they  are  reproduced,  associated,  and  preserved  under  the 
laws  of  motion.  LAMETRIE  and  HOLBACH  express  the 
principles  of  materialism  in  a  clear  and  popular  manner. 
The  "I  think,  therefore  I  am"  of  Descartes  became  the 
"I  feel,  therefore  I  am"  of  Saint  Pierre.  Ideology,  through 
the  work  of  TRACY,  became  confused  with  zoology. 
The  moral  sciences  are  considered  by  CABANAS  (who 
speaks  of  intracranial  reflection  and  thought  as  secre- 
tions of  the  brain)  as  parts  of  natural  history.  Freedom 
is  a  supra-intelligible  power,  and  the  will  wills  as  fire  burns. 
Locke  maintains  that  man  is  urged  to  work  not 
through  cognition  but  through  internal  discomfort. 
This  consists  of  a  feeling,  and  therefore  we  must  alter 
the  foundation  of  ethics.  Ethics  are  no  longer  based  on 
reason  but  on  feeling,  in  the  teaching  of  the  English 
moralists.  Emotions  and  not  ideas  are  the  motives 
of  work;  and  the  criterion  by  which  we  measure  actions 
is  a  special  sense  —  the  moral  sense.  This  sense  is  not 
original  (say  some  of  the  writers  of  the  English  school), 
but  is  derived  from  certain  external  elements.  It  is 
formed  step  by  step,  and  is  refined,  appearing  in  all 


38  INTRODUCTORY  SURVEY 

its  grades  as  a  product  of  psychological  association. 
Through  association  and  habit  egoistical  acts  become 
moral ;  because  one  begins  by  wishing  another's  good  for 
one's  own  ease  and  pleasure,  but  ends  by  wishing  it  for 
itself  without  other  motive.  To  such  conceptions 
(more  or  less)  can  the  theories  of  SHAFTSBURY,  BUTLER, 
HUTCHESON,  Hume,  and  ADAM  SMITH  be  reduced.  Smith 
says  (in  accord  with  Hume)  that  the  judge  of  moral- 
ity is  the  impartial  spectator,  and  that  the  basis  of 
judgment  is  sympathy.  Sympathy  with  him  who 
receives  a  good  or  bad  action  results  not  only  from 
participation  in  another's  pleasures  and  pains  (according 
to  the  writings  of  Hume),  but  also  from  partaking  of  the 
stimulus  of  rendering  good  for  good  and  evil  for  evil. 
In  this  lies  the  principle  of  social  justice. 

Hume  says  that  in  morals  the  subjective  element  is 
feeling,  the  objective  element  utility.  HELVETIUS  founds 
conduct  on  egoism,  on  individual  pleasure  and  utility. 
BENTHAM  (who  is  by  nature  not  a  philosopher  but  a 
legislator)  looks  to  the  general  utility  alone,  and  makes 
it  the  basis  of  ethics,  without  that  psychological  analysis 
of  principles  which  Hobbes  and  the  other  English  moral 
philosophers  make.  Believing  ingenuously  in  the  orig- 
inality of  his  doctrines  (which  belief  showed  him 
unacquainted  with  philosophical  thought),  the  pursuit 
of  pleasure  and  the  avoidance  of  pain  constitute  in  his 
mind  the  motives  of  action.  In  this,  he  is  in  accord  with 
Hobbes  and  Locke,  though  he  believes  that  such  a 
principle  cannot  be  demonstrated.  Bentham  op- 
poses the  systems  which  place  the  criterion  of  conduct 
outside  the  calculation  of  consequences,  and  builds  up 
a  moral  arithmetic  and  social  dynamics. 

The  SCOTCH  philosophers  base  certitude  on  internal  and 
inexplicable  suggestion  and  make  common  sense  (the 
extension  or  amplification  of  the  moral  sense)  the  measure 


PUFFENDORF,  WOLFF,  ROUSSEAU         39 

of  truth.  The  GERMAN  philosophers  of  the  Renaissance 
(the  epoch  of  so-called  sane  or  popular  philosophy, 
a  little  anterior  to  Kant)  waver  between  the  empirical 
movement  of  Locke  and  the  idealism  of  Leibnitz,  inclin- 
ing towards  scepticism. 

ROUSSEAU  admits  all  the  presuppositions  of  the  system 
of  natural  law  —  that  is,  the  basic  freedom  of  individual 
man,  the  state  of  nature,  the  formation  and  destruc- 
tion of  the  State  by  contract,  the  rights  of  individual 
defense  and  utility  —  and  therefore  the  maxim  of  popular 
sovereignty.  (To  these  Sidney  and  Locke  had  already 
added  the  right  of  rebellion;  this  had  its  origin  in  the 
belief  in  the  rights  of  the  Christian  community  in  ec- 
clesiastical affairs,  and  was  brought  to  perfection  in  the 
papal  interest  by  the  Jesuits,  who,  in  their  desire  to  over- 
throw civil  power,  taught  that  it  was  born  of  the  will 
of  the  people  while  pontifical  authority  came  from  God.) 
Rousseau  gives  to  the  system  of  natural  law  a  new 
attribute,  lacking  in  Grotius  and  in  later  writers, 
that  is,  the  inalienability  of  freedom.  He  repudiates  the 
usual  view  of  individual  freedom  and  does  not  hesitate 
to  place  Grotius  together  with  Hobbes  among  the 
champions  of  human  slavery.  Accepting  the  principle 
of  inalienable  freedom,  Rousseau,  to  solve  the  problem 
raised  by  it,  discovers  a  kind  of  political  union,  in  which 
freedom  is  not  alienable.  Every  man,  in  obeying  the  State, 
obeys  himself,  with  a  full  and  reciprocal  renunciation 
of  all  individual  rights  in  favor  of  the  community ;  —  hence 
his  doctrine  of  the  "general  will,"  the  inalienable,  in- 
divisible, and  non-representable  sovereignty,  and  hence 
his  criticism  of  the  mechanical,  constitutional  regime. 
Rousseau  recognizes  representative  government  in 
the  exercise  of  executive  power  only;  this,  under 
a  system  of  restraints,  can  be  entrusted  to  a  king 
or  commission.  The  object  of  the  activity  of  the 


40  INTRODUCTORY  SURVEY 

State  is  public  good  (understood  in  an  abstract  manner 
and  not  in  the  sense  of  the  good  of  all)  under  various  con- 
ditions of  life,  but  in  a  uniform  mode.  Later  philos- 
ophy has  of  course  shown  us  that  Rousseau's  state  of 
nature  is  an  hypothesis  contrary  to  reason  and  experi- 
ence; that  contract,  its  prerequisite,  is  not  possible 
without  the  State's  guaranty;  that  law  is  and  must  be 
existent,  while  contract  need  not  exist;  that  to  obtain 
this  supposed  uniformity  of  interest  and  hypothetical 
equality,  it  would  be  necessary  to  remove  not  only  the 
difference  of  legal  conditions,  but  the  indefinite  variety 
of  all  the  elements  of  life  as  well ;  and  that  to  admit  a 
distinction  between  the  general  will,  and  the  will  of  all, 
would  set  the  latter  free  from  every  rational  bond. 

The  French  Revolution  realized  the  system  of  natural 
law,  as  taught  by  Rousseau.  It  was  not  a  sudden  move- 
ment, but  the  result  of  a  long  preparation  into  which 
many  factors  entered.  The  new  man  evolved  by  the  Mid- 
dle Ages,  the  Renaissance,  the  Baconian  and  Cartesian 
philosophies  in  all  their  phases,  the  religious  wars, 
the  English  Revolution,  the  English  philosophical  doc- 
trines, the  progress  of  the  American  government,  the 
abuses  of  the  past,  and  the  Encyclopedia,  all  contributed 
their  quota.  Similar  elements  in  the  less  civilized  nations 
found  in  France  a  favorable  place  to  concentrate  and 
strike  the  great  blow.  With  the  "general  will"  separated 
by  Rousseau  from  all  ethical  essence  and  law,  the 
Revolution  sought  liberty  (not  within  but  beyond 
all  limits),  and  destroyed  all  secular  obstacles  opposed 
to  the  development  of  men.  Liberty,  now  become 
untrammeled  caprice,  soon  felt  the  need  of  re-establish- 
ing limitations;  and  various  reconstructions  appeared  in 
all  branches  of  human  activity.  But  all  were  the  tem- 
porary illusions  of  fancy. 


VICO  41 

VII 
VICO 

Vico  is  the  author  of  the  only  new  movement  "(with 
the  exception  of  Kant's)  since  the  days  of  Hume  and  Leib- 
nitz. Principles  (he  says)  govern  the  origin,  development, 
and  termination  of  facts.  Providence,  which  is,  in  the 
last  analysis,  mind  or  thought,  develops  first  in  the 
natural  and  then  in  the  human  order  —  that  is,  first 
as  natural,  then  as  human  providence.  Providence  is 
not  a  transcendent  or  extramundane  principle,  but  is 
immanent  and  intrinsic  in  cosmic  reality  and  history. 
Such  a  principle  develops  first  in  nature  and  then  in  the 
spirit;  first  in  the  natural  world,  then  in  the  world  of 
human  reason;  whence  the  double  motion  of  entities 
from  thought,  their  beginning,  towards  thought,  their 
end,  —  a  progress  and  regress,  a  double  cycle.  Science 
cannot  enter  the  immediateness  of  thought,  as  Des- 
cartes believed,  because  the  nature  of  things  is  nothing 
but  a  stage  in  history.  The  immediateness  of  thought 
does  not  reveal  the  cause  of  that  relation  of  the  certain 
and  the  true  which  science  desires.  From  the  certain, 
step  by  step,  comes  the  true;  the  mind  learns  the  true 
from  the  certain.  The  certain  is  part  of  the  true.  It  is 
one  of  its  extrinsifications,  and  therefore  the  true  is 
contained  in  the  certain.  The  true  is  the  idea,  the  certain 
is  the  actual  or  reality. 

The  conception  of  immanent  Providence,  towards  which 
his  "Diritto  Universale"  pointed,  is  clearly  shown  in  the 
"Scienza  Nuova,"  but  not  in  "Dell'  Antichissima  Sap- 
ienza  degli  Italiani,"  in  which  Providence  is  supramun- 
dane  and  analagous  to  the  Platonic  idea  of  the  good. 
This  book  (the  first  manifestation  of  his  genius,  which 


42  INTRODUCTORY  SURVEY 

aimed  at  the  reconstruction  of  history  from  the  rich 
field  of  Linguistics)  contains  two  suppositions, 
which  Vico  himself  later  abandoned:  The  wisdom  of 
our  ancient  ancestors,  later  called  by  him  "the  pride 
of  nations  and  the  learned" ;  and  the  invention  by  man  of 
mathematics  alone  —  a  restricted  application  of  the 
important  principle  of  the  conversion  of  the  true  with 
the  actual.  In  the  "Diritto  Universale"  and  "Scienza 
Nuova"  he  holds  that  man  is  the  author  not  only  of 
mathematics  but  of  all  the  sciences,  which  develop  with 
the  history  of  human  ideas,  that  is,  of  the  civil  world 
(with  its  principles  lying  in  the  modifications  of  the 
human  mind  itself),  and  of  religion  (which  changes  with 
the  development  of  the  mind;  for  the  ancients,  with 
robust  senses  and  vast  imagination,  pictured  God  ac- 
cording to  their  idea). 

Man  is  knowledge,  will,  and  power.  His  power  is 
bounded  only  by  his  will,  and  his  will  by  his  knowledge, 
but  mind  is  the  principle.  In  mind,  man  is  first  sense, 
then  imagination,  and  lastly  reason,  and  therefore  his  his- 
tory must  run  through  three  ages,  the  divine,  the  heroic, 
and  the  human.  To  knowledge,  will,  and  power,  cor- 
respond ownership,  freedom,  and  perfection  —  the  three 
elements  of  the  law-idea,  derived  from  the  force  of  reason, 
which  acts  against  cupidity  as  an  ethical  virtue  and  looks 
to  equalizing  the  useful  among  men  by  means  of  law. 
Law  has  the  useful  as  its  occasion  but  not  its  cause. 
Ownership,  freedom,  and  perfection  make  authority, 
which  is  monastic,  economic,  and  civil.  From  owner- 
ship, freedom,  and  perfection  are  derived  the  three  forms 
of  government  —  monarchy,  democracy,  and  oligarchy. 

The  science  of  law  is  based  on  reason  or  philosophy  and 
on  authority  or  philology.  It  considers  the  true  and  the 
certain,  that  is,  reason  and  authority;  authority  is  part  of 
reason  and  not  of  caprice ;  the  certain  is  part  of  the  true. 


VICO  43 

Hence  the  distinction  between  the  rationale  of  law,  which 
looks  to  the  true,  and  its  reason,  which  looks  to  the  certain ; 
hence  also  the  union  between  rational  and  positive  law. 
Positive  law,  when  the  distinction  between  the  true  and 
the  certain  is  understood,  is  seen  to  be  not  entirely 
identical  with  nor  entirely  opposed  to  the  rational.  It  real- 
izes ideal  law  according  to  the  laws  of  the  development 
of  knowledge,  or  temporal  evolution.  It  is,  therefore, 
in  its  arboreal  state,  violence,  which  afterwards  is  sub- 
jected to  restraint,  and  finally  attains  perfection  through 
absolute  truth  and  generous  reason.  The  best  law  is 
not  strict,  ironclad,  and  cramped,  but  like  that  of  the 
oligarchs  in  the  early  governments  and  under  the 
Quirites  in  Rome.  At  Rome  it  was  just  and  exemplary 
before  the  Twelve  Tables,  rigid  under  the  Republic, 
benign  under  the  Emperors,  becoming  divine  again,  as 
in  the  first  ages,  when  it  sprang  from  customs  deep- 
dyed  with  religion  and  piety. 

Government  at  first  lay  in  the  power  of  family  mon- 
archies and  then  passed  into  the  hands  of  the  heroic 
oligarchies  and  later  to  the  people  in  popular  republics, 
but  finally  returned  to  the  individual  in  the  civil  monar- 
chies. Mixed  forms  are  born  of  the  need  of  fostering  the 
people's  faith  in  the  government.  Law  at  first  was 
seen  in  custom;  then  in  legislation.  Grotius,  Selden, 
and  Puffendorf  are  wrong  in  beginning  at  the  first  ages 
of  uncivilized  nations,  and  with  men  enlightened  by  a 
natural  reason  fully  developed  —  that  is,  from  the 
period  in  which  the  philosophers  began  to  develop  a  true 
idea  of  philosophy.  With  the  beginning  of  nations 
began  the  subject-matter  of  the  natural  law  of  people. 
Grotius  was  wrong,  too,  in  saying  that  we  should  attrib- 
ute the  origin  of  feuds  to  the  barbarians,  because  feuds 
date  back  to  the  earliest  people;  they  were  ancient 
before  Homer  and  the  days  of  the  Heroes. 


44  INTRODUCTORY  SURVEY 

Vice's  doctrine  about  the  relation  of  reason  and  author- 
ity, of  the  true  and  the  certain,  and  his  criticism  of  the 
representatives  of  the  abstract  school  of  jurisprudence 
(that  is,  of  the  principles  of  natural  law,  from  a  number  of 
which  it  would  be  necessary  to  exclude  Selden,  who  aban- 
dons rational  criticism  and  allies  himself  with  theologi- 
cal data)  show  the  broadest  conception  of  law.  In  fact, 
if  the  certain  is  part  of  the  true  and  authority  is  part 
of  reason,  law,  on  the  one  hand,  cannot  fall  into  that 
historical  relativism  which  lies  more  in  the  "fieri"  than 
in  the  "esse,"  denying  the  ideal  and  constant  elements 
of  right;  on  the  other  hand,  it  will  be  no  longer  possible 
to  conceive  of  law  as  an  abstract  ideal  without  a  history, 
as  a  truth  without  a  relative  certainty.  We  must  remem- 
ber that  science,  according  to  Vico,  should  develop  with 
the  history  of  human  ideas,  and  therefore  the  idea  of 
law  without  history  would  not  be  human. 

Vice's  criticism  of  the  opinion  of  Grotius  on  feuds 
comes  from  his  conception  of  the  progress  and  regress 
of  times  and  institutions  —  the  denial  of  a  history  which 
moves  not  only  constantly  but  variously  and  progres- 
sively. The  concept  of  progress  and  regress  prevents 
Vico  from  fully  realizing  the  deep  significance  of  Chris- 
tianity; he  is  like  Polybius,  Machiavelli,  and  the  Egyp- 
tian philosophers.  MARIUS  PAGANUS  (who  deserves  credit 
for  showing  the  influence  of  foreign  causes  in  Vico's 
doctrine)  falls  into  the  same  error. 

Machiavelli  is  not  a  mere  follower  of  Epicurus.  He  be- 
lieves (contrary  to  Livy  and  Plutarch)  that  the  greatness 
of  Rome  was  the  result  of  worth,  notwithstanding  that 
the  reward  of  merit  is  given  by  fortune.  He  does  not  fully 
accept  the  mechanical  hypothesis.  We  must  note  that 
the  unscrupulous  (some  call  it  "diabolical")  nature  of 
the  advice  given  in  Machiavelli's  "Principe,"  and  the 
sincere  admiration  of  the  hermit  of  Saint  Casciano  for 


VICO  45 

Caesar  Borgia,  are  not,  if  one  accepts  the  ideas  of  Vico, 
necessarily  inconsistent  with  this  reliance  on  the  workings 
of  an  all-rewarding  Providence.  The  same  Providence  (in 
Machiavelli's  scheme  of  life)  out  of  bestial  lust  developed 
the  chastity  of  marriage,  —  out  of  the  abuse  of  seignorial 
liberty  brought  popular  freedom,  —  out  of  the  disso- 
luteness of  peoples  the  control  of  the  stronger  nations. 
Through  the  instrumentality  of  Polyphemus  it  spread 
obedience  in  mankind;  by  means  of  the  proud  Achilles 
and  the  just  Aristides  alike,  it  paved  the  way  for  popular 
liberty;  it  established  monarchy  through  Tiberius 
(a  sorrowful  man,  much  given  to  meditation).  And 
so  may  not  Caesar  Borgia  himself  have  been  a  sorrowful 
man,  much  given  to  meditation,  and  endowed  with 
the  qualities  necessary  in  that  age  of  corruption  to  make 
Italy  a  State?  In  many  places  in  the  "Scienza  Nuova," 
Vico  advances  a  criterion  of  political  morality  very 
different  from  that  which  governs  in  other  spheres  of  life. 


46       INTRODUCTORY  SURVEY 

VIII 
KANT 

KANT  believes  that  knowledge  is  a  complex  fact, 
the  result  of  rational  and  sensible  elements;  and  that 
it  must  be  considered  in  its  integrity,  and  not  in  one  of 
its  parts,  as  Locke  and  Leibnitz  considered  it.  Locke 
tried  to  solve  the  problem  of  knowledge  by  the  considera- 
tion of  the  single  factor  of  sense;  Leibnitz  on  the  other 
hand  based  all  his  theory  on  the  other  factor,  mind. 
Kant's  object  is  to  unify  these  two  movements.  In  his 
belief,  time  and  space  are  not  concepts,  but  intuitions  of 
sensibility.  Space  is  the  form  of  external  and  time  of 
internal  sensibility.  There  are,  however,  these  two 
intuitions  or  forms  of  the  primal  reception  of  various 
sensibilities,  of  which  there  is  no  corresponding  object 
without  ourselves.  Experimental  knowledge  is  possible 
under  certain  a  priori  conditions  through  the  categories 
of  pure  and  original  concepts,  constituting  the  functions 
of  the  mind  itself  applied  to  empirical  intuitions.  It  is 
an  a  priori  synthesis,  in  that  the  categories  are  ideal  cen- 
tres about  which  phenomena  group,  because  objects 
are  understood  as  they  appear,  and  not  of  themselves. 
The  phenomena  and  the  concepts  intercommunicate 
between  themselves.  There  is  an  original  synthetic  unity 
of  intuition  and  category.  This  unity  makes  knowledge 
possible  and  is  its  chief  foundation.  The  objects  not 
given  by  experience,  for  example,  the  soul,  the  world 
and  God,  are  not  knowable.  The  possibility  of  knowledge 
of  an  object  lies  in  its  power  of  being  experienced; 
and  to  the  three  above  ideas  there  are  no  corresponding 
intuitions.  The  three  ideas  are  not  knowledge,  but  are 
rules  to  bind  the  absolute,  which  is  not  given  by  experi- 


KANT  47 

ence.  For  the  absolute  must  exist.  It  is  a  demand  of 
reason,  but  the  science  of  the  supra-sensible  is  entirely 
eliminated  from  the  "Kritik  der  Reinen  Vernunft." 

In  knowledge,  there  are  the  two  elements  noted  above, 
the  data  of  sense,  and  the  category;  in  morality,  likewise, 
are  found  emotion,  or  sensible  stimulus,  and  moral  law. 
Morality  is  the  autonomy  of  will,  as  pure  reason  —  free 
from  all  prejudice,  emotion,  or  passion.  The  heterono- 
mous  will,  which  is  determined  by  secondary  selfish 
objects  and  generally  by  sensible  stimuli,  is  not  moral. 
A  desire  of  happiness,  or  a  resolution  under  even  a  noble 
passion,  such  as  Christian  charity,  clouds  the  purity  of 
the  will.  The  good  should  be  desired  per  se,  independent 
of  every  extrinsic  consideration.  The  categorical  imper- 
ative is  that  the  motive  of  action  should  be  one  with  the 
law,  and  should  be  the  principle  of  universal  legislation. 
Morality  is  pure  will.  To  it  all  our  acts  should  conform. 
The  will,  determined  of  itself,  is  an  end  for  itself,  and 
therefore  the  categorical  imperative  demands  that  the 
will  be  always  treated  as  final  and  never  as  medial. 
The  categorical  imperative  is  absolute,  comprehending 
pure  and  unlimited  will;  whence  it  follows  that  the 
absolute  of  the  "Kritik  der  Praktischen  Vernunft"  must 
exist.  Reason  demands  its  existence.  Freedom,  the  im- 
mortality of  the  soul,  and  the  existence  of  God,  are 
three  postulates  of  "Practical  Reason,"  three  presupposi- 
tions of  ethics,  and  not  knowledge.  Free  will  is  not  an 
object  of  cognition.  It  should  presuppose  the  latter,  in 
order  to  be  moral.  Since  there  is  a  relation  between  virtue 
and  the  time  necessary  to  obtain  it,  the  immortality 
of  the  soul  must  be  admitted.  The  harmony  between 
virtue  and  happiness  implies  the  existence  of  God. 

Kant  lays  bare  the  original  synthetic  unity  of  in- 
tuition and  the  category  —  of  the  real  and  the  ideal, 
of  nature  and  mind ;  but  he  does  not  succeed  in  explaining 


48  INTRODUCTORY  SURVEY 

it.  He  does  not  reconcile  the  two  terms,  and  in  the 
"Kritik  der  Reinen  Vernunft,"  with  the  presupposition 
of  the  unknowable,  he  enters  the  confines  of  abstract, 
empty,  and  formal  thought.  And  in  the  "Kritik  der 
Praktischen  Vernunft,"  he  does  not  overcome  formalism, 
because  morality  is  a  pure  form  of  reason,  alien,  and 
therefore  contradictory  to  any  kind  of  emotion  or  in- 
terest. The  categorical  imperative,  as  formulated,  does 
not  in  the  least  prescribe  what  must  be  done  to  be 
honest;  it  lacks  concrete  content. 

As  the  "Kritik  der  Reinen  Vernunft"  fixes  the  condi- 
tions, laws,  and  limits  of  knowledge,  so  the  "Kritik  der 
Praktishen  Vernunft"  deals  with  fundamental  notions  of 
a  practical  order.  Such  notions  are  moral  and  juristic, 
and  constitute  in  their  complexity  the  metaphysics  of 
custom  —  a  science  built  up  by  the  mind  of  Kant  alone. 
Morals  differ  from  law,  Kant  thinks;  because  the  former 
have  to  do  with  internal  acts  and  intention,  and  can  com- 
mand in  its  own  manner  what  law  commands;  while 
the  latter,  excluded  from  the  realm  of  intention,  embraces 
external  acts  and  cannot  enforce  moral  precepts.  Here  the 
separation  and  opposition  of  morals  and  law  in  the  Kan- 
tian system  are  made  clear,  for  since  he  has  not  com- 
pletely grasped  the  ethical  idea,  it  cannot  appear  to  him 
as  their  common  source. 

Law,  in  Kantian  philosophy,  partakes  of  the  general 
defects  of  his  system,  in  being  formal.  It  is  the  sum 
of  conditions  under  which  everybody's  unbridled  freedom 
can  coexist  with  the  liberty  of  all,  thanks  to  a  universal 
law;  but  of  exactly  what  this  sum  and  this  universal 
law  consist,  Kant  does  not  tell  us.  The  essence  of  law, 
as  he  analyzes  it,  is  limitation  and  coexistence.  It 
would  be  useless  without  a  power  of  enforcement. 
Law  is  private  and  public.  Private  law  regards  property 
and  includes  corporeal  objects,  obligations,  and  the 


KANT  49 

status  of  individuals  (whence  the  division  of  law  into 
real,  personal,  and  mixed).  Public  law  is  the  guaranty 
of  private  law.  Reason  forces  us  to  pass  from  the  nat- 
ural state  (which,  in  Kant's  mind,  is  an  idea  and  not  a 
fact)  to  the  social.  Public  law  is  constitutional.  It  is 
the  law  of  nations,  and  is  cosmopolitan.  The  State 
arises  from  contract;  but  its  content  is  not  capricious, 
because,  in  the  State,  man  has  true  liberty,  equality,  and 
independence.  The  State  has  no  other  mission  than  to 
look  to  the  coexistence  of  the  liberty  of  individuals. 
Thus  it  follows  that  the  Kantian  State,  whatever  be 
its  law  or  policy,  must,  since  it  is  based  on  reason,  de- 
velop from  a  system  of  natural  law.  The  State,  like  an 
individual,  necessarily  must  advance  from  the  natural 
to  the  social. 


50  INTRODUCTORY  SURVEY 

IX 

GENOVESI,  FICHTE,  SPEDALIERI,  AND 
ROMAGNOSI 

After  Vico  came  GENOVESI,  not  a  follower  of  Wolff 
and  Locke,  though  an  admirer  of  the  latter  (and  likened 
by  him  to  a  tall  and  noble  but  sterile  cypress).  He  is 
eclectic,  in  fact,  though  showing  but  little  scepticism. 
His  teaching  of  eclectic  freedom  in  philosophy  emanci- 
pates it  from  slavery  to  the  masters,  both  in  Italy  and 
elsewhere;  for  we  must  not  forget  that  the  principles 
of  the  Neapolitan  philosopher  were  applauded  and  re- 
ceived in  Germany.  In  ethics,  Genovesi  follows  Locke 
closely.  Man,  according  to  the  author  of  the  "Diceo- 
sina,"  tends  towards  happiness,  which  is  obtained  by  the 
harmony  between  individual  cupidity  and  social  rights. 
The  law  that  effects  this  harmony  is  moral  law.  It  is 
one,  certain,  unchangeable,  and  obligatory,  enforcing 
the  observation  of  rights,  and  their  reestablishment 
if  violated.  A  right  is  an  essential  property  given  to 
rational  beings  and  guaranteed  by  the  universal  law. 
It  is  a  means  to  happiness.  There  is  an  equality  in  respect 
to  inherent  rights  —  an  inequality  in  the  different 
orders  and  species  of  things.  Every  right,  acquired  by 
means  of  an  activity,  is  reduced  to  individual  control 
which  has  its  origin  in  a  need.  There  is  a  right  to  occu- 
pancy, if  work  is  done  on  the  thing  occupied.  Whoever 
violates  a  right  deprives  someone  of  his  property.  The 
true  natural  state  is  not  that  of  Vico  and  La  Metric  but 
the  patriarchal.  Social  coexistence,  the  effect  of  the 
existence  of  man,  is  the  basis  of  sovereignty,  which  pre- 
supposes express  tacit  consent.  The  laws  should  be  en- 
acted by  a  body  of  learned  men.  The  mixed  form  of  the 
Spartan  and  English  Constitutions  is  a  divine  inven- 


GENOVESI  51 

tion.  The  State  has  the  right  of  eminent  ownership; 
the  duty  or  right  of  education,  and  the  temporal  rights 
of  the  Church  are  really  prerogatives  of  the  State. 
Law  demands  full  respect  of  neutrality,  of  allegiance, 
and  of  embassies,  and  is  opposed  to  conquests  made 
under  the  pretext  of  civilizing  the  conquered  people. 

Genovesi  is  a  follower  of  Locke's  utilitarian  doctrines. 
He  believes  that  the  end  of  man  is  happiness,  and  there- 
fore the  motives  of  action  can  only  be  the  desire  of  reward 
and  the  fear  of  punishment.  The  author  of  the  "Diceo- 
sina"  considers  rights  as  property;  but  he  does  not  show 
to  what  extent  rights  can  be  alienated.  He  does  not  be- 
lieve in  a  state  of  nature,  and  yet  he  speaks  of  certain 
rights  ceded  to  the  State  for  common  security.  He  de- 
velops an  antagonism  between  natural  and  civil  law, 
such  as  had  not  been  asserted  since  Vice's  time.  His 
works  contain  disquisitions  on  punishment;  on  sover- 
eignty as  the  effect  of  social  coexistence;  on  certain 
of  the  statutes;  on  the  regulation  of  private  gentlemen 
or  the  middle  class  (called  by  him  "pagliettismo");  on  the 
body  of  learned  law-givers;  on  the  necessity  of  making 
ownership  free,  easy  of  transfer,  individual,  divisible, 
and  accessible  to  all;  and  on  the  unity  and  sovereignty 
of  the  State.  His  views  on  the  necessity  of  altering  the 
rules  of  property  can  be  found  in  the  "Lezioni  di  Com- 
mercio,"  which  outlined,  even  before  Adam  Smith's 
work,  the  science  of  the  wealth  of  nations  and  of  popu- 
lation —  a  science  taught  for  the  first  time  by  Genovesi  in 
the  chair  endowed  by  Intieri  in  Naples.  He  did  not 
treat  his  subject,  however,  from  the  point  of  view  of 
labor;  this  was  first  considered  by  Smith,  who  agrees 
with  Genovesi  that  wealth  comes  from  work  as  mani- 
fested in  the  arts,  crafts,  and  trades.  The  idea  of  unity 
lies  in  sovereignty  of  the  State,  which,  he  says,  in 
Naples  expressed  a  new  triumph  of  the  laity  through  the 


52  INTRODUCTORY   SURVEY 

efforts  of  a  priest.  Genovesi  himself  combatted  as  a  phil- 
osopher the  doctrines  of  Argento,  Riccardi,  Capasso,  and 
Giannone,  all  of  whom,  controlled  by  civil  history 
and  canonical  influences,  believed  in  the  claims  of 
papal  Rome. 

After  Kant  came  FICHTE.  In  his  system,  the  original 
synthetic  unity  of  intuition  and  category,  of  sense  and 
mind,  becomes  auto-consciousness;  is  self-producing; 
and,  as  such,  develops  in  thesis,  antithesis,  and  synthesis. 
For  Fichte,  knowledge  means  that  the  subject,  or  the  ego, 
is  also  in  itself  the  non-ego  or  the  object.  In  other  words 
knowledge  demands  that  the  object,  the  non-ego,  should 
have  the  same  ideal  form  as  the  ego ;  whence  the  principle 
of  the  ego  as  ego  and  non-ego.  But  the  ego  of  Fichte 
does  not  act  as  a  real  ego;  neither  does  the  non-ego  act 
as  nature;  it  is  the  form  and  non-reality  of  knowledge, 
and  therefore  is  not  truly  absolute.  From  this,  come  the 
Fichtian  subjectivism  and  relativism,  shown  both  in  his 
ethics  and  his  natural  law.  In  fact,  moral  action, 
which,  according  to  Kant,  presupposes  conformity 
to  necessary  and  universal  law,  is  derived  by  Fichte 
from  the  action  of  the  ego  through  conviction,  and  reaches 
fulfillment  in  enthusiasm  or  reciprocal  excitation.  Fichte 
does  not  tell  what  this  conviction  consists  of,  or  rather 
he  does  not  indicate  its  content,  thus  become  a  condition 
of  morality.  For  Kant,  juristic  freedom  is  from  its  crea- 
tion limited  by  universal  freedom ;  for  Fichte,  it  originates 
from  the  individual  and  real  existence  of  the  ego;  is 
based  on  the  right  of  a  rational  being  to  act  as  the  sole 
cause  in  the  sensible  world;  and  is  of  itself  unlimited, 
like  the  coercive  faculties  which  inhere  in  it.  But  since 
one  ego  must  admit  another  ego's  existence,  it  must, 
by  that  admission,  attribute  to  the  other  an  unlimited 
power  like  its  own.  Thus  the  powers  of  both  mutually 
lessen  and  limit  one  another.  At  this  point,  freedom  is 


FICHTE,  SPEDALIERI  53 

transformed  into  license,  or  into  a  power  deprived  of  any 
law.  Fichte  perfects  (with  Rousseau)  a  system  of  natural 
law,  paying  no  attention  to  those  germs  of  speculative 
juristic  philosophy  left  by  Kant,  who  saw  the  great 
difference  between  license  and  freedom,  and  tried  to 
realize  the  latter,  while  maintaining  equality  and  indepen- 
dence within  the  State. 

Fichte  cannot  deduce  a  permissive  law  from  the  abso- 
lute moral  law  of  universal  jurisdiction.  In  a  rational  be- 
ing, there  is  love  of  duty  for  duty's  sake  (a  tendency, 
absolute  and  obligatory)  and  love  of  one's  self  and  of 
one's  fellows  (a  power,  and  not  of  the  same  character, 
because  it  can  be  reduced  to  unlimited  freedom,  which 
excludes  every  law).  The  attainment  of  freedom  de- 
pends on  freedom  itself,  and  therefore  the  law  and  the 
State  are  secondary.  The  State  can  be  destroyed  and 
remade  at  will.  But  in  a  second  phase  of  his  specula- 
tion he  modifies  his  first  doctrine,  because  he  leaves  sub- 
jective idealism  and  takes  up  the  theory  of  the  absolute 
ego,  and  consequently  corrects  his  early  legal  notions. 

SPEDALIERI,  like  Genovesi,  starts  out  with  the  tendency 
of  man  to  happiness,  to  which  rights  and  obligations  are 
medial.  For  him,  natural  law  is  a  power  conforming  to 
reason  —  arising  not  from  the  act  of  man,  like  positive 
law,  but  from  the  essential  qualities  of  man's  nature. 
The  principles  of  natural  law  are  necessary  and  immu- 
table truths;  not  so  those  of  positive  law.  The  natural 
rights,  which  belong  to  man,  as  man,  look  to  his  preser- 
vation, self -protection,  and  property;  and  there  is  a 
right  to  be  free  to  act  in  pursuit  of  these  three  rights, 
as  well  as  a  free  right  to  thought,  to  self-defense,  and 
the  aid  of  one's  fellow-beings  (an  imperfect  right  in  all 
cases,  except  of  absolute  necessity) .  As  soon  as  the  mind, 
says  Spedalieri,  sees  that  such  a  thing  should  be  done 
in  such  a  way,  man  enters  into  a  true  obligation,  into 


54  INTRODUCTORY  SURVEY 

a  necessity  conforming  to  reason,  although  he  con- 
tracts with  no  one. 

The  kinds  of  obligations  are  as  numerous  as  the  kinds  of 
rights.  The  notions  of  good  and  evil,  of  the  just  and  the 
unjust,  contained  in  natural  law,  do  not  come  from  human 
invention  or  the  free  will  of  God,  but  are  the  sequence  of 
things,  expressing  necessary  eternal  truths  that  God 
cannot  fail  to  approve.  It  is  evident  that  Spedalieri, 
with  these  three  concepts  of  law,  obligation,  and  natural 
law,  with  the  entirely  rationalistic  system  which  he  em- 
phasizes in  his  first  book,  goes  back  to  the  great  principle 
of  the  modern  philosophy  of  law  —  that  is,  to  reason 
as  the  source  of  the  Ethos,  to  the  reason  that  is  the  very 
system  of  the  universe,  and  therefore  to  an  objective  will 
and  not  a  capricious  and  subjective  one  (like  that  on 
which  the  whole  system  of  natural  law,  so  called,  which 
had  its  last  expression  in  Fichte,  was  founded). 

We  can  observe  the  same  thing,  when  Spedalieri  goes 
on  to  contrast  the  state  of  nature  with  civil  society, 
and  to  conjecture  about  the  origin  of  the  latter.  At 
once,  certain  advantages  and  disadvantages  are  seen, 
common  to  both  states,  derived  from  the  nature  of  man 
and  its  necessary  effects.  Thus,  for  example,  in  the 
state  of  nature,  since  man  tends  towards  happiness  and 
is  gifted  with  powers  capable  of  various  development, 
there  should  be  (as  in  civil  society)  an  equality  of  rights 
and  natural  obligations,  and  an  inequality  in  the  material 
of  these  rights.  Looking  more  closely,  it  is  seen  that 
man  is  infinitely  better  in  civil  society  than  he  would  be 
in  the  state  of  nature,  at  least  so  far  as  physical  conditions 
are  concerned.  Lastly,  in  regard  to  the  spirit,  the  advan- 
tage is  wholly  on  the  side  of  civil  society.  If  it,  the  state 
of  nature,  therefore,  could  exist  (concludes  Spedalieri), 
it  would  be  infinitely  worse  than  the  present  social 
conditions.  But  it  is  more  than  likely  that  this  state 


SPEDALIERI  55 

never  existed,  because  men  in  it,  being  savages,  would 
have  been  able  only  with  the  greatest  difficulty  to  form 
a  conception  of  a  system  of  society  in  order  to  realize  it ; 
unless  we  suppose  that  God  himself,  by  a  single  act  of 
omnipotence,  created  everything  —  mankind,  civil  so- 
ciety, language,  and  abstract  ideas  (at  least  those  ideas 
most  necessary  to  physical  existence  and  moral  conduct). 
Now  there  can  be  no  doubt  that  these  reasonings  of  the 
Sicilian  philosopher  destroy,  on  the  one  hand,  one  of 
the  bases  of  the  system  of  natural  law,  that  is,  the  hypo- 
thesis of  a  state  of  nature ;  and  on  the  other,  show  that  the 
inherent  rights  (thought  to  belong  to  a  state  of  nature) 
exist  only  in  a  state  of  society,  for  the  part  cannot  exist 
without  the  whole  or  the  person  without  the  ethical 
organism. 

And  yet  Spedalieri  cannot  rise  entirely  superior  to  the 
influence  of  the  principles  of  his  time.  After  raising  the 
idea  of  an  objective  nature  to  the  plane  of  ethico- 
juristic  criticism,  and  denying  the  state  of  nature,  he 
still  maintains  that  contract  is  the  base  or  intrinsic 
rationale  of  civil  society.  In  the  first  place,  he  says, 
we  must  distinguish  the  actual  from  the  ideal.  It  is 
one  thing  to  search  out  what  has  happened  in  fact, 
and  another  to  discover  what  should  be  done  by  right; 
and  it  can  be  shown,  as  an  historical  truth,  that  man 
can  be  born  or  remain  outside  of  society,  and  at  the  same 
time  that  an  implied  contract  is  the  basis  of  rights 
in  civil  society.  In  whatever  state  man  is  found  (pro- 
viding that  it  is  one  in  which  he  can  exist)  he  must 
be  there  by  his  own  will  and  consent,  otherwise  there 
would  be  violence  done  to  his  imperishable  right  of  free- 
dom. But  here  Spedalieri's  earlier  principle,  that  of  the 
necessary  and  eternal  sequence  of  things,  which  God 
cannot  fail  to  desire,  is  ignored,  and  an  empty  subjec- 
tive principle  of  consent  is  substituted  —  a  principle 


56  INTRODUCTORY  SURVEY 

not  important  in  the  various  situations  of  life,  and  not 
all-controlling;  for  the  subjective  will  should  conform  to 
the  substantial  and  objective  will,  which  is  the  norm 
and  order  of  things. 

ROMAGNOSI,  as  a  philosopher,  is  not  one  who  merely 
reproduces  the  thought  of  Locke,  Condillac,  and  Bonnet. 
He  is  a  close  follower  of  the  doctrine  of  Campanella, 
who  considered  the  cognition  of  external  things,  called 
by  him  "addita,"  as  founded  entirely  on  the  certainty  of 
"abdita"  cognition  —  that  is,  on  the  consciousness  of 
being,  power,  will,  and  knowledge.  It  is  evident  that 
the  conception  of  an  original  "abdita"  knowledge,  or 
primitive  spontaneity  of  mind,  is  directly  opposed  to  the 
system  of  the  modern  sensualists,  who  affirm  that  ideas 
come  from  without  and  that  the  spirit  attains  knowl- 
edge of  external  objects  before  it  attains  knowledge  of 
itself.  But  according  to  Romagnosi,  the  perceptions 
are  not  copies  of  external  originals,  but  are  derived  from 
the  indeterminate  energy  of  the  ego  or  its  unity,  as  shown 
by  the  consciousness  of  the  functions  of  knowledge, 
will,  and  purpose,  variously  affected  by  the  influences 
of  external  stimuli ;  and  they  should  be  regarded  as  signs 
to  which  existing  things  and  methods  correspond.  The 
mind  (says  Romagnosi)  knows  with  truth  and  acts 
with  effect.  He  distinguishes  the  ages  of  mental  develop- 
ment into  epochs  of  personified,  imitative,  and  philo- 
sophical doctrines  (the  last,  in  which  true  cognition  of 
things  is  deduced  from  their  assignable  cause,  was  begun 
by  the  work  of  Galileo).  Opposing  the  fanatic  realists, 
he  concedes  there  has  been  great  abuse  of  this  truth  by 
gratuitous  abstractions  and  speculations  sanctioned 
by  the  Church;  but  insists  that  we  should  not  fall  into 
the  other  extreme;  there  is  a  middle  course  between 
Scylla  and  Charybdis ;  here  Romagnosi  makes  good  use 
of  Bacon's  maxim. 


ROMAGNOSI  57 

As  to  morals,  law,  and  politics,  Romagnosi  distin- 
guishes five  schools  —  the  mythical,  transcendental,  theo- 
logical, fictional,  and  philosophical.  He  criticizes  the  first 
for  basing  law  on  an  hypothesis  of  savage  solitude ;  the 
second,  for  not  giving  equity  a  controlling  interest; 
the  third,  for  putting  the  divine  will  in  place  of  the 
human;  the  fourth,  for  creating  fictitious  men  and 
qualities.  The  fifth,  he  bases  on  indubitable  fact, 
undeniable  laws,  and  distinct  norms.  It  assumes 
the  natural  tendencies  of  man  as  fundamental,  and 
tempers  legal  acts  with  a  necessary  equity.  Social 
power  should  be  considered  as  the  resultant  effect  of 
this  intermingling;  and  from  it  canons  and  laws  should 
be  deduced,  with  due  regard  to  the  action  of  time  and 
chance  (which  Romagnosi  respects),  keeping  in  view 
the  perfecting  of  civilization,  and  regarding  it  as  an  art; 
whence  the  concept  of  the  arbitrary  transmission  of  the 
fact  of  civilization.  This  philosophical  school  is  not 
really  Baconian  (because  it  makes  facts,  not  dogmas, 
the  basis  of  the  moral  and  political  sciences),  nor  is  it 
Benthamic.  Bentham,  says  the  Italian,  is  the  most 
famous  among  those  modern  philosophers  who  preach 
the  atheism  of  law  and  morals ;  they  do  not  distinguish 
between  the  regularly  and  irregularly  useful;  they  pre- 
sent ethical  notions  without  their  fundamental  causes; 
they  hold  both  natural  law  and  that  of  the  nations 
to  be  fictitious,  but  only  because  they  cannot  rise  to  the 
conception  of  a  useful  existent  before  positive  law  — 
that  is,  to  Vico's  principle  of  the  equitable  good. 

Natural  law,  he  maintains,  is  a  science.  It  is  the  system- 
atic cognition  of  the  rules  governing  human  acts,  de- 
duced from  the  real  and  necessary  natural  relations, 
in  order  to  obtain  the  good  and  avoid  the  evil.  It  lies 
in  the  pursuit,  by  means  of  society,  of  the  best  preser- 
vation of  man,  accompanied  by  the  quickest  and  fullest 


58  INTRODUCTORY  SURVEY 

means  for  the  perfection  of  the  ego.  This  definition  does 
not  take  account  of  the  difference  between  morals  and 
law,  though  human  acts  can  be  either  entirely  ethical  or  en- 
tirely juridical.  It  reproduces  the  idea  of  law  according  to 
Clarke  and  Montesquieu ;  it  is  in  accord  with  the  positive 
direction  of  Romagnosi's  philosophy,  who  always  seeks 
the  idea  in  the  act.  It  presents  the  conception  of  nature 
as  a  spontaneous  and  necessary  sequence  of  events  — 
as  an  order  of  reason,  as  a  moral  necessity,  not  coercive. 
It  unites  the  utilitarian  formula  of  happiness  with  that 
of  the  equitable  good  of  Vico.  If  natural  law,  writes 
Romagnosi,  is  to  attain  to  the  Viconian  doctrine  of  the 
true  and  certain,  it  must  be  one  of  necessary  and  im- 
mutable reason,  and  of  mutable  position  when  there  are 
changes  of  nature  or  chance.  And  from  this  point 
of  view  it  is  as  extended,  pliant,  and  multiform  as  circum- 
stances demand  —  whence  the  socialization  of  necessary 
law  and  the  conception  of  an  economic  law.  Herein 
is  seen  a  sanction  of  the  liberal  theories  of  Adam  Smith, 
and  of  the  maxim  of  Genovesi  that  he  who  governs  too 
much  governs  badly. 

The  ruling  maxims  of  practical  jurisprudence,  as 
developed  by  Romagnosi,  can  be  reduced  to  four. 
First,  there  is  the  formula  of  the  equality  of  exchange- 
able utilities  (except  of  the  inviolable  exercise  of  common 
liberty),  to  which  the  laws  of  contract  and  quasi-con- 
tract  (including  trusts  and  the  rules  of  intestacy) 
are  referable.  Second,  there  is  the  idea  of  a  legislative 
survey  comprehending  the  complicated  relations  of 
social  circumstances  and  of  their  control.  Great  re- 
liance should  be  placed  on  statistics,  which  Romag- 
nosi (here  opposed  to  Say)  thinks  should  aid 
a  politically  strong  State,  with  active  control  over  all 
objects  within  its  sphere.  Third,  comes  the  concept 
of  the  connection  between  law  and  economics,  where 


ROMAGNOSI  59 

social  justice  makes  common  cause  with  truth  and  com- 
mon utility,  and  is  limited  by  the  social  power.  Lastly, 
comes  the  idea  of  comparative  legislation,  which  leads 
our  author  to  say  that  there  is  no  nation  more  advanced 
than  the  Roman  in  the  art  of  comparing  utilities  —  an 
art  that  is  found  to-day,  he  says,  in  the  existing  civil 
code  of  the  Kingdom  of  Italy. 


60  INTRODUCTORY  SURVEY 

X 

THE  WRITERS  OF  THE  REACTIONARY  PERIOD 

—  THE  HISTORICAL  AND  PHILOSOPHICAL 

SCHOOLS— SCHELLING  AND 

SCHLEIERMACHER 

The  powerful  and  extensive  movement,  begun  in 
the  name  of  the  rights  of  the  individual,  resulted  (as 
we  have  already  said)  in  the  theoretical  and  practical 
glorification  of  license.  This  can  be  seen  in  the  systems  of 
Rousseau  and  Fichte,  and  the  immense  revolutionary 
current  of  the  past  century.  The  individual,  aiming  to  re- 
affirm his  personality,  produced  an  empty  ego  and  then 
tried  to  reconstruct  the  human  world  by  will  alone, 
without  giving  it  an  ethical  content.  But  this  effort 
(because  contrary  to  nature)  was  not  crowned  with  suc- 
cess; and  soon  there  was  a  reaction  in  the  form  of  a  new 
movement,  based  on  the  principle  of  an  objective  will. 
This  principle  was  destined  to  lend  substance  to  the 
empty,  rational,  and  universal  forms  of  Kant,  reestablish- 
ing the  idea  of  a  higher  ideal  necessity,  and  emphasizing 
the  part  of  man  that  is  more  intimately  related  to  the 
community.  At  this  stage  of  events,  the  ancient  State 
was  an  object  of  admiration.  Yet  we  must  note  that 
the  idea  of  the  community  never  regained  its  former  value 
in  its  redevelopment  in  history  after  the  period  of  in- 
dividualism. For,  since  the  age  of  individualism,  the 
need  of  a  harmonic  agreement  between  the  two  elements 
was  clear  —  a  harmony  which  the  concept  of  an  ethical 
organism  alone  is  capable  of  producing. 

In  Italy,  the  principle  of  an  objective  will  was  not 
entirely  lost  sight  of  by  the  writers  of  the  past  century 
or  their  followers  of  to-day.  In  fact,  Genovesi  was 
moved  to  pity  by  their  exaggerated  doctrines.  He  held 


HISTORICAL  SCHOOL,  ETC.  61 

that  we  must  preserve  our  rights,  and  must  reestablish 
them  if  violated.  Lampredi  looked  upon  a  right  as  a  fac- 
ulty of  doing  what  is  necessary  towards  the  fulfilment  of 
an  obligation ;  it  was  derived  (in  his  mind)  from  the  dic- 
tates of  reason  and  a  sensible  impulse  towards  happiness. 
He  believed  that  obligation  is  based  on  the  nature 
of  things  itself  and  therefore  on  the  will  of  God,  the 
supreme  creator  and  preserver  of  the  laws  of  the  world. 
Spedalieri  did  not  believe  in  the  state  of  nature,  and 
advanced  a  belief  in  a  general  objective  scheme.  Romag- 
nosi  based  his  system  on  the  necessity  of  nature,  and 
freely  criticized  Rousseau. 

The  Italian  authorities  who  inclined  towards  the  max- 
ims of  the  Encyclopedists  (by  whom  they  were  extrav- 
agantly praised)  are  GALIANA,  BECCARIA,  and  FILAN- 
GIERI.  Galiana,  economist,  publicist,  and  writer,  is  not 
occupied  with  the  search  for  the  real  principles  of  law. 
Beccaria  (to  whom  Europe  owes  the  reformation  of 
a  barbarous  system  of  penal  law,  inherited  from  the 
Roman  Empire,  illustrated  in  Carpzovius,  Clarus,  and 
Farinacius)  departs  from  the  hypothesis  of  the  social 
contract  in  order  to  establish  a  right  of  punishment. 
He  denies  the  legality  of  capital  punishment.  Here  he 
differed  from  Rousseau,  who  taking  the  same  point  of  de- 
parture concludes  in  favor  of  it ;  for  (says  the  latter)  such 
a  right  is  given  to  society  by  the  individual,  who  risks 
his  life  in  order  to  save  it.  The  great  reformer's  princi- 
ples of  penal  law  and  the  laws  of  the  division  of  labor 
are  methodically  set  forth  by  RENAZZI,  who  borrows 
his  practical  criterion,  his  equity  and  his  criticisms 
from  the  Roman  jurisconsults  and  Malthus.  Renazzi 
believes  in  the  state  of  nature  and  in  the  social  contract ; 
but  he  does  not  decide  the  question  of  capital  punish- 
ment, being  content  to  combat  barbarous  punishments. 
Filangieri  is  a  close  follower  of  the  abstract  French 


62  INTRODUCTORY  SURVEY 

philosophy,  believing  in  the  omnipotence  of  legislative 
license,  which  ought  to  abolish  immediately  the  laws 
handed  down  from  the  brigands  of  the  Middle  Ages, 
and  to  create  wise  men  and  philosophers  by  the  touch 
of  the  wand  of  honor.  Always  guided  by  abstract 
ideas,  he  recognized  the  possibility  of  laws  which  would 
be  good  for  all  times  and  places  —  thus  departing 
from  Montesquieu,  who  thought  that  law  should  answer 
the  needs  of  each  country  and  age.  We  might  say  that 
Filangieri  shows  what  should  be  done  and  Montesquieu 
what  has  been  done.  But  the  connection  between  the 
science  of  legislation  and  the  French  theories  is  pecu- 
liarly manifest,  when  Filangieri  accepts  the  distinction 
between  the  state  of  nature  and  society,  and  discourses 
upon  the  surrender  of  individual  rights  to  society; 
among  these  he  includes  the  right  of  killing  an  assailant, 
the  foundation  of  the  legality  of  capital  punishment. 

Outside  of  Italy,  the  new  movement  is  represented  by 
three  groups  —  the  so-called  writers  of  the  REACTION- 
ARY PERIOD;  the  followers  of  the  HISTORICAL  SCHOOL; 
and  SCHELLING  and  SCHLEIERMACHER. 

The  REACTIONARIES  hope  for  the  return  of  that  ethical 
objectivity,  existing  prior  to  the  great  revolutionary 
movement,  and  conceive  of  a  restoration  of  affairs,  ac- 
cording to  various  national  traditions.  So  DE  MAISTRE, 
who  extended  theocracy  to  princes  and  nobles,  and 
founded  the  theory  of  the  papal  system,  reproduces 
the  conception  of  the  old  French  monarchy.  BURKE, 
an  admirer  of  the  cavaliers,  of  the  sentiments  of  honor 
and  religion,  but  without  any  theocratic  notions,  combats 
the  Revolution,  with  the  aid  of  English  civilization  and 
conservative  ideas.  And  HALLER,  who  attributes  a 
character  of  private  right  to  royal  power,  draws  his 
inspiration  from  the  principles  of  the  ancient  German 
territorial  constitutions. 


HISTORICAL  SCHOOL,  ETC.  63 

The  partisans  of  the  HISTORICAL  SCHOOL  (who  want  it 
regarded  as  a  positive  and  not  a  philosophical  school 
of  jurisprudence)  start  out,  as  STAHL  says,  with  the 
connection  between  law  and  the  national  conscience. 
Considering  law  as  independent  of  individual  will, 
they  distinguish  it  from  the  statutes,  and  look  on  it  as 
a  varying,  progressive,  slow,  and  lengthy  formation  by 
society  —  thus  making  the  State  not  a  mechanism  but 
an  organism.  They  distrust  abstract  metaphysics, 
and  recognize  in  the  State  the  continual  succession  of 
a  change  of  forms,  in  which  the  highest  intellectual 
unity  of  a  people  is  shown.  They  manifest  the  greatest 
respect  for  what  exists,  and  great  aversion  to  sudden  in- 
novations and  destructions.  SAVIGNY,  the  head  of  this 
school,  believes  in  the  old  law,  and  is  inclined  by  birth 
and  disposition  to  conservative  ideas.  THIBAUT,  the 
head  of  the  philosophical  school,  attacks  the  old  law, 
preferring  the  rational  element,  and  is  urged  by  his  con- 
victions to  enter  the  field  in  support  of  progress.  We  must 
remember,  nevertheless,  that  Savigny  did  not  deny  him- 
self the  aid  of  philosophy,  nor  deny  progress.  He  recog- 
nized the  principle  of  the  continuity  of  the  development 
of  legal  forms  in  connection  with  all  other  social  facts; 
although  he  defended  tradition,  it  was  in  a  liberal  spirit. 
On  the  other  hand,  Thibaut  declared  that  he  did  not 
know  .a  single  jurisconsult  who  in  the  hope  of  a  better 
future  did  not  despise  the  past  and  the  present.  He  was 
a  great  admirer  of  NIEBURH  and  proclaimed  with  ardor 
the  necessity  of  reforms  not  opposed  to  historical  con- 
ditions. The  historical  theory,  like  a  philosophical 
principle,  has  its  unity  in  Vice's  immortal  doctrine  of 
the  true  and  the  certain,  where  they  are  joined  and 
produce  a  harmony. 

ScHELLiNG1  posits  the  speculative  principle  of  reason, 

i  See  infra,   p.  79. 


64  INTRODUCTORY  SURVEY 

as  the  identity  of  nature  and  spirit;  and  explains  the 
reality  of  knowledge  —  left  unexplained  by  Fichte. 
He  attains  such  identity  through  intellectual  intuitive- 
ness.  Conforming  to  the  fundamental  doctrine  of  his 
philosophy,  Schelling  bases  Ethics  on  an  absolute 
will,  superior  to  the  particular  wills  that  develop  in  the 
various  moral  organisms.  The  State  (in  his  mind) 
is  the  harmony  of  necessity  and  freedom  in  the  realm 
of  reality;  while  the  Church  is  the  expression  of  the  same 
harmony  in  the  spiritual  realm  of  faith.  The  State  is 
the  resultant  of  the  one  and  the  many;  and  upon  the 
various  methods  of  equilibrium  depends  the  history  of 
nations.  In  antiquity,  the  one  prevailed;  in  modern 
times  the  one,  as  a  monarch,  is  placed  over  against 
the  many,  represented  by  the  people,  conscious  of  their 
power.  The  one,  in  the  actual  State,  is  abstract,  not  true 
and  concrete,  whence  arises  the  need  of  the  union 
of  the  State  and  Church,  which  expresses  the  unit 
in  the  ideal. 

The  starting  point  of  SCHLEIERMACHER  is  analogous 
to  that  of  Schelling.  It  is  reason,  the  universal  objective 
power,  which  in  its  development  forms  nature  and  the 
moral  world.  The  moral  world  (according  to  Schleier- 
macher)  is  explained  through  Ethics,  which  include  the 
rational  laws  of  custom,  right,  the  State  and  Church, 
as  well  as  the  history  or  realization  of  such  laws.  The 
essence  of  Ethics  is  derived  from  the  interpenetration  of 
reason  and  nature  —  an  interpenetration  that  is  never 
complete.  The  organic  functions,  by  which  reason 
subjects  nature  and  makes  it  its  symbol,  constitute  the 
methods  of  interpenetration.  Law  is  based  on  Ethics, 
and  consists  in  the  moral  coexistence  of  individuals, 
connected  in  their  various  relations,  which  constitute 
a  necessary  ethical  process,  because  reason  demands  the 
moral  communion  of  men.  This  is  realized  in  the  State 


HISTORICAL  SCHOOL,  ETC.  65 

by  the  submission  of  nature  to  the  control  of  a  national 
group  of  individuals.  If  we  once  admit  this  definition  of 
the  State,  it  is  clear  that  speculative  thought  or  scientific 
communion,  the  free  social  idea,  and  religious  sentiment, 
(although  in  the  form  a  communion) ,  should  not  be  placed 
under  the  control  of  the  State.  If  the  constitution  of  the 
State  depends  on  various  national  elements,  it  follows 
that  no  political  Metaphysics,  but  only  a  simple  Physi- 
ology, will  be  possible. 


66       INTRODUCTORY  SURVEY 

XI 
HEGEL 

Schelling  started  out  at  once  with  the  highest  prin- 
ciple,—  with  an  intuition  (like  a  cannon  ball,  as 
Hegel  says).  HEGEL  does  not  believe  in  the  presup- 
position of  an  intuition.  He  reaches  absolute  knowledge 
by  a  series  of  acts  so  connected  that  one  follows  from 
another.  He  develops  his  theory  from  the  most  ele- 
mentary knowledge,  or  sensible  consciousness  (in  which 
the  object,  seen  confusedly,  is  hardly  distinguished  from 
the  subject),  to  representation  (which  considers  the  ob- 
ject as  something  with  determinate  properties).  From 
this  form  of  knowledge  he  comes  to  reason,  which  under- 
stands things  as  forces  or  causes,  or  individual  objects; 
from  reason  he  goes  on  to  auto-consciousness,  in  which 
one  ego  considers  its  relation  to  another;  and  from 
auto-consciousness  he  is  led  to  the  sphere  where  the  spirit 
is  identity,  always,  however,  distinct  in  itself  from  object 
or  subject.  The  determinations  of  this  identity  are,  there- 
fore, objective  and  subjective;  such  determinations  are 
the  categories  (the  material  of  logic,  a  science  of  primal 
reality  or  metaphysics).  •  Logic  is  divided  into  Being 
which  develops  in  the  categories  of  quality,  quantity, 
and  measure ;  Essence,  which  includes  all  the  categories 
of  relation;  and  Notion,  which  has  its  movements  in  im- 
mediate perception,  its  division  in  judgment,  and  its  rein- 
tegration  in  syllogism.  Being  is  the  thesis,  Essence  the 
antithesis,  and  Notion  is  the  unity  of  Being  and  Essence. 
The  entire  process  of  the  categories  depends  on  the  "idea." 
"Idea,"  complete  in  itself,  when  fully  understood,  is  sen- 
sible reason ;  nature  is  derived  from  the  spirit,  the  immedi- 
ateness  of  the  idea;  whence  it  appears  always  as  posited, 


HEGEL  67 

created ,  and  has  a  rationale  of  means  in  regard  to  it.  The 
primitive  categories  of  nature  are  space  and  time,  indica- 
tive of  pure  exteriority.  Matter  is  concrete  space.  It 
was  first  inorganic  and  then  assumed  organic  and 
living  form.  Life  has  its  degrees;  vegetable  life  assimi- 
lates and  exhales  matter;  in  animal  life  there  are  also 
assimilations  and  exhalations,  but  the  animal  assimilates 
through  the  senses  and  exhales  through  the  appetites. 
The  spirit,  first  as  an  indeterminate  sense  of  self,  and 
then  as  a  concrete  or  individual  sense,  is  mind  made  one 
with  body.  It  participates  in  the  life  of  nature,  from  which 
it  receives  various  influences;  hence  differences  of 
race,  temperament,  and  the  peculiarities  of  waking  and 
sleeping,  and  of  sex.  When  the  mind  becomes  a  con- 
crete sense  of  self,  interpenetrated  with  self,  it  is  the 
ideal  identity,  knowledge,  consciousness,  the  distinction 
of  the  ego  from  the  non-ego.  Consciousness,  through  its 
diverse  forms,  as  we  have  said  before,  develops  into  mind 
and  attains  objectivity  and  certainty.  Mind,  this  iden- 
tity of  the  object  and  subject  in  subjective  form,  is  theo- 
retical. The  theoretical  mind  begins  by  being  an  intui- 
tion, and  becomes  representation  and  reason.  Since 
the  mind  produces  the  subject,  the  universal,  or  the 
concept,  from  theoretical,  it  becomes  practical,  that  is, 
identity  of  object  and  subject  in  objective  form.  The 
practical  mind  is  at  first  practical  sentiment  or  unstable 
appetite,  then  inclination,  desire,  passion,  and  license, 
and  finally  reasonable  or  moral  freedom,  realized  in 
custom.  With  the  attainment  of  rational  freedom,  prac- 
tical mind  becomes  ethical  spirit,  the  unity  of  the  theoret- 
ical mind.  Such  spirit  is  the  activity  which  produces,  not 
objects  of  sense,  representation,  and  reason,  but  those  that 
are  ethical  or  juridical.  Soul,  consciousness,  and  mind 
are  found  in  every  individual.  They  do  not  constitute 
worlds;  the  spirit,  as  Ethos,  is  a  community  of  subjects 


68  INTRODUCTORY  SURVEY 

and  therefore  a  world.  But,  in  fact,  the  struggle  of 
the  passions  does  not  disappear,  whence  the  necessity  of 
a  higher  sphere  where  the  spirit  can  be  all-important 
and  can  attain  the  Absolute  through  art,  religion,  and 
philosophy.  The  Absolute  in  art  lies  in  sensible  intui- 
tions, in  religion,  in  sentiment,  and  faith;  and  in  philos- 
ophy it  is  shown  by  the  evidence  of  reason.  It  is  in 
philosophy  that  the  spirit  acquires  full  and  complete 
auto-consciousness  and  development  through  the  mind. 

The  philosophy  of  law,  according  to  Hegel,  has  for 
its  object  the  idea  of  the  law  and  its  realization.  Law 
is  external  freedom.  It  is  the  existence  of  freedom,  which 
is  first  determined  in  particular  objects  by  ownership, 
and  then  in  agreement  over  one  object  by  contract.  In 
ownership,  there  is  the  will  that  realizes  itself  in  the  things 
possessed.  As  these  are,  by  their  nature,  accidental,  it, 
too,  is  accidental.  The  accidental  will  or  caprice  denotes 
a  possibility  of  the  alienation  and  also  of  the  violation 
of  rights,  though  the  latter  entails  a  punishment.  Punish- 
ment is  the  vindication  of  a  violated  right,  by  which 
true  and  good  reason  is  substituted  for  false  and  de- 
praved reason.  Thus  freedom  advances  from  the  state 
of  external  to  one  of  internal  existence.  Internal  freedom 
is  morality,  which  lies  in  the  practical  virtue  of  the 
spirit  to  direct  the  sensible  desires  according  to  reason. 

The  spirit,  after  being  shown  in  act  as  juristical  objec- 
tivity and  moral  subjectivity,  makes  for  the  unity  of 
law  and  morals,  of  external  and  internal  freedom.  The 
simple  observation  of  the  law  has  no  virtue  in  it,  nor 
an  abstract  belief  in  the  good  per  se,  the  law  can  be 
obeyed  without  a  belief  in  the  good,  and  a  belief 
in  the  good  is  not  a  sure  sign  of  respect  for  the  law. 
The  belief  should  be  shown  in  a  manner  not  entirely 
subjective,  accidental,  and  temporary,  but  stably  and 
substantially  —  that  is,  in  ethical  habit,  ordinary  ac- 


HEGEL  69 

tion,  and  custom.  Custom  presupposes  the  community 
of  subjects  or  minds.  This  community  is,  first  the  family, 
then  civil  society,  and  lastly  the  State.  The  family  is  a 
community  existing  in  sentiment  and  love.  This  unity 
has  a  tendency  to  become  more  rational  in  form,  the 
family  developing,  when  the  children  acquire  full  con- 
sciousness of  their  being  and  assert  themselves  with 
their  individual  interests.  The  systemization  of  these 
particular  interests  is  civil  society. 

Sentiment  and  interest  cannot  exhaust  the  concept  of 
man,  therefore  a  new  form  of  community  is  created, 
in  which  the  spirit  can  develop  as  reason  or  universal  will. 
The  new  form  is  the  State,  an  ethical  organism,  con- 
taining universality  in  its  legislative  power,  particu- 
larity in  its  governing  power,  and  individuality  in  the 
power  of  the  king.  The  predominance  of  one  of  these 
factors  over  the  others  generates  the  various  political 
types,  for  democracy  corresponds  to  universality, 
aristocracy  to  particularity,  and  monarchy  to  individual- 
ity. In  representative  monarchies,  all  the  factors  in  the 
concept  of  the  State  are  fully  realized. 

International  public  law  is  a  derivative  of  the  rela- 
tions between  States,  based  on  the  common  nature  and 
autonomy  of  nations.  War,  a  relationship  between  States, 
is  the  only  means  for  the  settlement  of  their  disputes; 
it  is  like  the  salutary  movement  of  the  air.  Constant 
peace  presupposes  an  agreement,  which,  based  on  relative 
motives,  can  only  be  accidental.  National  existence 
lies  entirely  in  the  power  of  the  absolute  spirit,  which 
exercises  full  jurisdiction,  putting  out  of  existence  the 
nations  that  have  fulfilled  their  mission,  and  creating 
others  to  express  new  concepts.  Whence  it  is  that  the 
history  of  the  world  is  the  manifestation  of  universal 
justice.  Absolutely  spiritual  are  the  beginning  and  end 
of  nations,  which  represent  the  grades  of  their  develop- 


70  INTRODUCTORY  SURVEY 

ment.  The  historical  entity  of  nations,  their  special 
mission  in  the  world,  are  derived  from  the  absolute 
spirit,  which  Hegel  made  all-important,  believing  in  the 
ethical  and  mundane  spirit  as  a  complexity  of  law, 
morals,  and  politics. 


ROSMINI,  KRAUSE,  SCHELLING,  ETC.       71 


XII 

ROSMINI,  HERBART,  TRENDELENBURG,  AND 

KRAUSE— THE     VARIOUS     PHASES     OF 

SCHELLING'S  PHILOSOPHY  — STAHL 

AND  SCHOPENHAUER 

Italian  philosophy  did  not  remain  uninfluenced  by 
the  movement  of  German  thought,  and  especially  by  the 
Kantian  movement.  SPAVENTA  showed  the  influence 
of  the  former  with  great  acumen,  in  his  examination  of 
the  doctrines  of  GALLUPI,  ROSMINI,  and  GIOBERTI.  Gallupi 
follows  experience,  which  for  him  is  the  elaboration  of  the 
data  of  the  senses  in  the  relations  dependent  upon 
the  synthetic  activity  of  the  spirit,  such  as  identity  and 
difference.  He  starts  out  with  the  Kantian  form  of 
knowledge,  that  is,  distinction,  as  the  base  of  empirical 
knowledge,  teaching  that  perception  outside  of  myself 
is  inseparable  from  consciousness  of  myself.  And  he 
follows  Kant  in  his  recognition  of  synthetic  judg- 
ments a  priori  practical,  and  of  ideas  born  of  the  spirit 
synthetically  an  unit.  Rosmini  bases  knowledge  on  the 
transcendental  idea  of  entity.  Like  Kant,  he  sees  in 
the  fact  of  knowledge,  intuition  or  sensible  data,  and  the 
category  or  innate  idea  of  the  entity;  and  in  intellectual 
perception,  the  reduction  of  the  latter  to  the  former.  But 
the  idea  of  the  entity  through  its  very  indefiniteness  can- 
not lend  itself  to  the  connection  of  the  pure  concepts, 
of  the  categories ;  neither  can  the  latter  come  from  the 
senses,  and  therefore  (thinks  Gioberti)  Rosminian 
transcendentalism  results  in  nullism ;  and  we  are  in  need 
of  a  concrete  principle  of  knowledge,  suitable  to  the  crea- 
tion of  the  categories.  Such  a  principle  is  the  ideal  formula 
of  Gioberti;  being  creates  the  existent.  To  explain 
knowledge,  Gioberti  does  not  have  recourse  to  an  empty 


72  INTRODUCTORY  SURVEY 

and  inert  idea,  like  that  of  a  possible  entity,  but  to  an 
idea  which  comprehends  and  originates  everything,  to 
the  creatjve  idea,  a  new  form  of  the  original  synthetic 
activity  of  sense  and  intellect,  of  the  ideal  and  the  real, 
of  nature  and  spirit. 

Of  the  three  Italian  philosophers,  Rosmini  alone  has 
a  complete  and  fully  developed  philosophy.  He  starts 
out  with  the  ethical  principle,  recognizes  being  in  its 
place  and  respects  it  for  what  it  is  worth.  From  the 
practical  recognition  of  being  is  derived  happiness, 
consisting  in  the  satisfaction  of  our  capacities, 
by  their  attainment  of  their  proper  ends.  Moral  law 
prescribes  the  practical  recognition  of  being,  in  its 
sphere  or  as  it  is;  which  means  that  in  an  intelligent 
being,  all  the  activities  proper  to  it  should  be  recognized 
and  respected.  Respecting  all  the  activities  of  an  entity 
implies  the  duty  of  not  hindering  it  in  the  exercise  of  its 
rights.  The  activities  of  a  being,  considered  in  relation 
to  the  law,  whose  respect  they  command,  become  as 
numerous  as  the  rights  to  which  they  belong.  And 
since  the  activity  of  a  being  is  connected  with  its  well- 
being,  so  right,  subjectively  considered,  is  the  faculty  of 
doing  what  one  pleases,  protected  by  the  moral  law  which 
enjoins  its  respect.  The  science  of  law  is  connected 
with  eudemonology,  which  shows  the  material  or  good 
of  enjoyment,  and  with  ethics,  which  show  the  form, 
that  is,  the  nobility ;  they  guarantee  the  well-being  of  man. 
Ethics  are  concerned  with  duties;  the  law's  object  is  the 
power  of  action.  The  former  are  of  an  essentially  moral, 
and  the  latter  of  an  eudemonic  nature  but  influenced  by 
its  relation  with  moral  law,  in  which  law  is  subordinate  to 
ethics.  From  the  definition  of  law,  it  can  be  easily  seen, 
as  morals  must  end  in  an  intelligent  principle,  that 
there  cannot  be  any  rights  except  in  intelligent  beings, 
whose  activities  moral  law  protects.  Moral  law,  too, 


ROSMINI,  KRAUSE,  SCHELLING,  ETC.       73 

prescribes  absolute  respect  of  personality,  which  alone 
is  ultimate,  and  prescribes  through  it  the  respect  due  to 
all  the  immediate  or  mediate  activities  that  are  man's. 
The  general  characteristic,  which  marks  activity  as  the 
subject  of  a  right,  not  only  in  relation  to  the  inherent 
rights  but  also  in  relation  to  rights  in  general,  is  property. 
Property,  in  its  broadest  signification,  means  the  con- 
junction of  one  individual  thing  to  another,  a  stable  and 
complete  conjunction,  so  exclusive,  in  fact,  that  one 
object  is  called  the  other's,  and  can  be  bound  in  the  same 
degree  to  nothing  else.  Rights  are  innate  and  acquired. 
The  second  presupposes  the  first,  as  the  act  requires 
its  potentiality.  Only  those  rights  are  alienable  which 
are  not  essentially  bound  to  the  person.  Rights  are 
maintained  by  legal  or  by  personal  force. 

The  ideal  being  and  the  first  law  (says  Rosmini)  are  iden- 
tical for  all  men  and  intelligences.  All  the  intellectual 
activities,  therefore,  and  all  the  purely  personal  rights 
of  the  beings,  which  form  the  human  race,  are  joined, 
thus  binding  men  together  in  a  state  of  natural  society. 
The  concept  of  a  society  is  that  of  many  persons,  who 
have  united  for  a  common  purpose,  or  the  good  that  they 
hope  to  obtain  together,  using  to  win  and  obtain  it  the 
activities  that  each  has  a  right  to  assign.  All  men  are 
united  in  the  ideal  being;  all  men  aspire  to  it,  wish  to  pos- 
sess and  enjoy  it.  The  tendencies  to  being  and  well- 
being  generally  start  from  the  personal  activities, 
which  cause  the  being  in  the  first  instance,  and  form 
the  nature  of  man.  If  men  propose  for  themselves  other 
more  particular  advantages,  concepts  of  other  societies 
will  arise  writhin  the  first.  From  the  purely  personal 
rights  comes  the  society  of  mankind;  from  individual 
acquired  rights  spring  the  roots  of  all  the  other  particu- 
lar associations,  with  their  determinate  ends.  In  such  a 
way,  individual  rights  generate  social  rights.  But  being  is 


74  INTRODUCTORY  SURVEY 

ideal,  real,  and  moral.  And  three  kinds  of  advantages 
(objects  of  the  society  of  mankind)  correspond  to  these 
three  of  its  forms.  The  tendency  to  happiness  leads  to 
being  as  the  real,  the  tendency  to  truth  leads  to  being 
as  the  ideal,  the  tendency  to  virtue  and  justice  leads 
to  morality.  As  each  form  of  being  demands  the  other 
two,  so,  in  each  of  these  tendencies,  the  other  two  are  con- 
tained. The  initial  society  of  mankind  can,  therefore, 
give  place  to  three  diverse  societies,  domestic,  civil, 
and  theocratic  or  divine.  Domestic  society  places  man  in 
relation  to  the  reality  of  existence  through  sentiment  and 
procreation,  and  has  the  rationale  of  a  principle.  Civil 
society  (a  discovery  of  the  human  intellect)  is  the  safe- 
guard and  protection  of  the  exercise  of  rights  and  has  the 
rationale  of  a  means.  Theocratic  or  religious  society 
consecrates  rights  by  a  new  virtue,  which  bases  all 
entities  and  objects  upon  the  principle  from  which  they 
spring,  and  it  has  the  rationale  of  an  end. 

To  the  absolute  idealism  of  Hegel  is  opposed  in  Ger- 
many the  metaphysical  and  individualistic  realism  of 
HERBART,  founded  on  the  Kantian  principle  of  things 
in  themselves.  Kant  began  with  the  sensations ;  Herbart 
begins  with  the  formal  concepts  of  experience,  containing 
contradictions  which  must  be  eliminated  by  meta- 
physics. We  know  the  phenomena  of  an  object  as 
it  appears;  the  phenomenon  is  not  explicable  without 
the  being  in  which  it  appears;  the  being  is  not  an  ele- 
ment of  a  concept,  but  is  without  it.  It  is  absolute 
position,  and  is,  as  such,  single,  indistinct,  simple,  irrela- 
tive, and  immutable.  The  contradictions,  contained  in 
the  concepts  of  things,  properties,  changes,  and  causes, 
are  derived  from  a  presupposition  of  inherence  (something 
with  diverse  quality)  and  from  the  demand  of  change  (a 
partial  alteration  of  the  thing),  while  being  is  single,  of 
but  one  property,  simple  and  not  capable  of  change. 


ROSMINI,  KRAUSE,  SCHELLING,  ETC.       75 

Inherence  and  change  are  referable  to  phenomena, 
not  to  being.  Being  consists  in  many  "reals"  or  monads, 
simple  and  immutable,  existing  in  themselves  and  of 
themselves.  All  these,  united,  give  a  result  which  each 
alone  cannot  give.  Phenomena  arise  from  the  relations 
between  the  close,  impenetrable  monads,  placed  one 
against  the  other.  If  a  monad  touches  another,  the 
contact  is  always  external,  the  disturbance  extrinsic, 
but  the  monad,  that  is  touched,  preserves  its  qualities, 
and  responds  by  an  act  of  preservation,  wherein  lies  the 
effective  appearance  of  things,  in  other  words,  repre- 
sentation. The  ego,  as  a  principle  of  representations, 
is  single  and  many.  It  contains  the  contradictions 
revealed  in  the  conception  of  things  and  properties. 
The  contradictions  end  when  the  ego  is  regarded  as  a 
point-movable,  in  which  many  series  of  representation 
intersect. 

Now  it  is  manifest  that  this  kind  of  realism  cannot 
overthrow  idealism,  because  the  "reals"  are  metaphysical 
presuppositions,  which  express  thought  in  its  simplicity 
and  distinction.  The  difference  (from  this  point  of  view) 
between  Herbart  and  Hegel  is  that  Hegel  considers 
thought  explained  in  his  system  of  determinations  as 
the  concrete  connection  and  truth  of  experience,  while 
Herbart  bases  it  on  intuitive  thought  in  its  indistinction 
or  the  true  substance  of  the  "reals."  Herbartian  realism, 
in  ethics,  is  mere  formalism,  because  it  is  based  upon 
purely  abstract  conceptions  of  harmony  and  aesthetic  ac- 
cord. /Esthetics,  differing  from  metaphysics,  depart 
from  empirical  data,  and  develop  through  a  series  of  judg- 
ments,, expressing  contentment  or  displeasure.  Ethics 
are  a  part  of  aesthetics,  whose  judgment  contains 
approval  or  disapproval  of  actions,  in  comparison  with 
some  model  concepts,  which  give  no  positive  commands. 
If  the  action  accords  with  such  an  original  model,  it  is 


76  INTRODUCTORY  SURVEY 

worthy  of  approval ;  if  it  does  not,  it  is  disapproved  of. 
Such  concepts  do  not  show  what  should  be  done;  they 
are  not  imperative;  and  ethics,  therefore,  are  without 
a  content  of  action,  and  are  essentially  formal.  There  are 
five  model  concepts,  which  deal  with  freedom,  perfec- 
tion, benevolence,  law,  and  equity.  Law  is  the  harmony 
of  the  majority  of  wills  to  avoid  struggle.  From  these 
five  ethical  concepts,  not  reducible  to  a  single  concept, 
there  arise  five  social  concepts.  The  concept  of  ani- 
mated society  rose  from  the  concept  of  freedom,  the  con- 
cept of  the  system  of  education  corresponds  to  that  of 
perfection;  beneficence  comes  from  benevolence;  the 
concept  of  the  juristic  society  corresponds  to  law, 
and  a  system  of  retribution  presupposes  equity. 

TRENDELENBURG,  who  thinks  that  in  the  Hegelian 
dialectics  intuition  is  artfully  hidden,  and  that,  without 
intuition,  there  is  no  real  progress,  exalts  above  all 
the  principle  of  simple  original  motion,  common  to  thought 
and  being.  He,  however,  is  unwilling  to  admit  that  mo- 
tion, thus  conceived,  in  an  idealistic  system  such  as  his, 
must  in  its  essence  be  the  same .  as  Hegelian  growth. 
In  Hegelianism,  growth  is  derived  from  the  nature  of 
thought  itself,  which  is  an  action  of  union  and  distinction, 
relation,  motion.  Motion,  in  which  there  is  a  commun- 
ion of  thought  and  of  being,  is  not  corporeal,  according 
to  idealism;  and  can  only  be  the  result  of  thought. 
For  thought  alone  is  capable  of  containing  in  itself  being, 
of  going  out  from  itself  and  returning  to  itself.  Motion, 
thus  regarded,  is  reducible  in  the  last  analysis  to  the 
original  synthetic  activity  of  Kant.  Trendelenburg, 
therefore,  is  not  an  effective  opponent  of  Hegel  but  rather 
of  Herbart,  the  enemy  of  motion .  He  thinks  that  the  con- 
tradictions with  which  Herbart  starts  out  are  not  true; 
that  if  they  were  true,  they  could  not  be  resolved; 
and  that  even  if  they  were  resolved,  the  highest,  that  of 


ROSMINI,  KRAUSE,  SCHELLING,  ETC.      77 

the  end,  would  not  be  explained.  He  denies  the 
atomic  conception  of  the  world  and  Spinoza's  concep- 
tion of  indifference.  He  prefers  the  organic  teleological 
definition  of  Plato  and  Aristotle,  and  bases  law  on 
ethics. 

Natural  law,  like  ethics,  has  its  presupposition  in 
metaphysics,  which  give  the  organic  conception  of  the 
world,  and  in  psychology,  that  shows  the  essence  of  man. 
Metaphysics  create  the  idea,  the  principle  of  organic 
conception  and  of  all  necessity.  Law,  in  that  it  rises  to 
the  elevation  of  the  idea,  participates  in  the  necessity 
which  is  logical,  physical,  and  ethical.  The  necessity  in 
law  at  first  is  ethical,  because  it  contains  a  norm  of 
reason.  Then  it  is  physical  or  compulsory,  because  force 
is  a  means  for  the  realization  of  the  norm  among  recal- 
citrant wills;  and  finally  it  is  logical,  because  law  must 
appeal  to  the  intellect  and  has  need  of  method  in  its  for- 
mation and  application.  Law,  therefore,  has  three  sides — • 
ethical,  physical,  and  logical.  From  the  first  point  of  view, 
law,  as  ethics,  should  be  founded  on  the  essence  of  man 
lying  in  the  depth  of  his  ideas,  and  on  the  fullness  of  his 
historical  development,  because  a  single  rational  element 
leads  nowhere,  and  a  single  historical  factor  is  useless. 
The  idea  of  man  is  the  idea  of  a  community:  "unus 
homo,  nullus  homo."  The  human  community  is  essen- 
tially a  whole,  an  ethical  organism,  in  which  control  and 
organization  are  shown.  The  control  affects  the  in- 
dividuals, who  aid  one  another  to  obtain  their  particular 
ends.  The  organization  concerns  the  ends  of  the  commun- 
ity, effectuated  by  man  in  general.  The  control  and  or- 
ganization should  harmonize;  neither  should  prevail 
at  the  cost  of  the  other.  If  the  first  is  absolute,  it  results 
in  atomism  and  anarchy.  If  the  second  has  exclusive 
control,  individual  personality  is  denied.  Now  law, 
the  norm  of  control  and  organization,  is  the  complexity 


78  INTRODUCTORY  SURVEY 

of  those  universal  determinations  of  action,  which 
render  the  preservation  of  the  ethical  whole  and  its  parts 
possible.  It  works  for  the  realization  by  force  of  the 
ethical  whole.  Ethics  are  the  objective  realization 
of  the  human  essence;  morals  and  law  represent 
more  the  subjective  realization,  one  considering  the  in- 
tention and  the  conscience,  the  other  considering 
action,  external  relations,  and  coexistence. 

The  philosophy  of  KRAUSE  shows  an  attempt  to  unite 
the  subjectiveness  of  Fichte  and  the  objective  principle 
of  Schelling.  According  to  this  philosophy,  God  is  a 
personal  and  living  principle;  the  world  is  the  revela- 
tion of  a  living  God,  who  is  the  original  essence  through 
autonomasia.  AHRENS,  who  applies  the  ideas  of  Krause 
to  the  sciences  of  law  and  of  the  State,  holds  that  the 
theory  of  this  philosophy  harmonizes  the  two  general 
methods,  the  analytic  and  the  synthetic  (resting  on  an  an- 
alysis of  all  its  relations  of  human  nature  in  which  law 
appears  as  the  principle  of  order);  he  reduces  man 
and  humanity  to  God.  The  conception  of  law  is  there- 
fore analytic  in  one  aspect  and  synthetic  in  another. 
Justice  is  a  divine  and  human  idea,  and  consists  in  the 
untrammeled  regularity  of  the  life  of  all  moral  beings, 
that  is,  in  the  organic  complexes  of  conditions  created 
by  God  and  humanity,  so  that  reasonable  beings  may  at- 
tain their  rational  ends.  Law,  on  the  one  hand,  is  distinct 
from  morals  and  religion  and,  on  the  other,  is  intimately 
connected  with  them,  in  that  it  represents  their  condi- 
tional side,  giving  conditions  suitable  to  existence  and 
development  to  all  the  fundamental  elements  of  life. 
There  is  no  side  of  life  with  which  law  has  no  relation. 
Law  not  only  limits  and  protects,  but  tends  to 
fulfill  and  aid  the  individual  activities.  In  every 
subject,  it  recognizes  two  elements,  the  personal  and  the 
social;  and  tries  to  reconcile  them  in  the  various  insti- 


ROSMINI,  KRAUSE,  SCHELLING,  ETC.      79 

tutions.  The  State  represents  the  law;  it  does  not 
absorb  the  individual  or  society.  The  rules  should 
be  different  for  the  spheres  of  science,  art,  industry, 
commerce,  morals,  and  religion.  The  State's  duty  is  to 
maintain  the  social  development  in  the  life  of  justice 
and  to  assure  the  means  of  perfection  to  every  branch 
of  human  knowledge.  The  State  may  be  called  the  medi- 
ator between  the  individual  and  society,  but  it  is  nothing 
more  than  one  of  the  principal  organs  of  the  vast  or- 
ganism of  society.  Society  is  an  organic  whole,  result- 
ing from  diverse  institutions,  each  of  which  is  referable 
to  an  important  side  of  human  life.  All  institutions 
are  higher  forms  of  existing  society  in  epochs  of 
maturity  and  social  harmony. 

Between  Kant  and  Hegel  there  are  philosophical  doc- 
trines based  on  an  irrational  principle  of  the  world. 
JACOBI  regards  the  absolute  as  not  irrational  in  itself 
but  as  unknowable  for  us.  The  absolute  for  him  was  only 
an  object  of  sentiment  and  faith;  Schelling  passes  from 
rationalism  to  irrationalism,1  when  he  abandons  the  pre- 
supposition of  the  identity  of  the  real  and  ideal  as  reason 
and  yet  (remaining  a  monist)  teaches  that  everything 
is  derived  from  an  unconscious  will,  which  is  force. 
In  mechanics,  life,  sensation,  and  instinct,  the  uncon- 
scious will  (universal  force)  is  blind  and  fatal.  In  history 
there  is  an  internal  individualization  of  the  principle 
of  force  accompanied  by  consciousness.  History  begins 
with  the  separation  of  the  will  as  an  individual  conscious 
force  from  the  will  as  a  cosmic  force ;  and  in  this  separa- 
tion lies  the  origin  of  evil.  History  proceeds  with  the 
conscious  and  untrammeled  prevalence  of  the  general 
will  over  the  individual,  that  is,  through  the  intelligence 
and  the  spontaneous  dedication  of  the  individual  wills 
to  the  ends  and  purposes  of  the  general  will. 

1See  supra,  p.  63. 


80  INTRODUCTORY  SURVEY 

Also,  in  the  last  phase  of  his  philosophy,  Schelling 
abandons  realism.  Existence,  qua  existence,  is  a 
fact  for  the  mind,  which  alone  can  have  a  conception 
of  it.  Our  knowledge  is  exclusively  based  on  exper- 
ience which,  understood  in  its  common  meaning,  can- 
not include  the  absolute.  But  there  is  an  experience  of 
another  kind,  human  experience,  or  the  religious  con- 
sciousness of  man  in  his  historical  development,  which 
is  capable  of  revealing  spontaneously  the  absolute 
principle. 

On  the  last  phase  of  Schelling's  speculation,  STAHL, 
(who  has  a  great  reputation  among  the  critics  of  the 
historical  school)  bases  his  arguments.  Stahl  admits 
that  the  world  is  the  effect  of  the  free  creation  of  a  per- 
sonal God  (the  object  of  a  higher  experience),  and  that 
in  history  sovereign  intelligence  and  divine  control 
are  shown.  The  great  progress,  he  says,  of  our  century 
in  the  philosophy  of  law  and  politics  is  due  to  the  prin- 
ciple of  objectivity,  understood  even  by  Hegel  in  a  logi- 
cal sense.  It  is  necessary  to  understand  objectivity  in  a 
real  sense,  and  therefore  to  raise  as  a  rule  of  law  the  effec- 
tive and  concrete  order  of  life,  that  is,  the  structure  and 
economy  of  the  human  family,  made  by  a  power  superior 
to  man  with  ethical  or  final  laws,  immanent  in  all  rela- 
tions. Stahl  is  the  author  of  a  doctrine  of  a  historico- 
theological  character. 

SCHOPENHAUER  considers  the  world  as  representation 
and  will.  The  representation  is  phenomenon,  illusion; 
the  will  is  real,  noumenon,  placed  outside  the  repre- 
sentative sphere.  Man  does  not  represent  only  the  body, 
but  feels  immediate  dependence  on  the  will,  as  the  latter's 
true  and  direct  expression.  Pleasure  and  pain  indicate 
the  agreement  or  disagreement  of  corporeal  motion 
with  acts  of  will.  The  will  is  the  principle  of  the  world 
inasmuch  as  it  is  separate  from  consciousness,  and 


ROSMINI,  KRAUSE,  SCHELLING,  ETC.      81 

in  its  infinity  is  a  cosmic  force.  Will  is  gravitation,  mag- 
netism, the  force  of  sorrow,  instinct,  the  intentional 
acts  of  man,  which  are  the  effect  of  the  necessary  deter- 
mination of  motive.  Will  is  a  blind  force,  a  tendency  to 
objectivity  and  life.  Phenomenon  exists  through  the 
objectivation  of  the  will,  and  the  will  becomes  objective 
through  its  exercise.  Hence,  cognition  is  explained  by  the 
will,  the  essence  of  the  world.  Human  will  cannot  go  be- 
yond representation  for  its  motive  and  purpose,  and  it 
cannot  equal  the  single  and  blind  will  as  a  cosmic  force. 
It  surfers  from  this  hindrance;  and  hence  pain  and 
grief.  We  can  free  ourselves  from  phenomenon  in  an 
essentially  ethical  manner.  Will  produces  the  individuals 
in  whom  there  are  two  stimuli,  egoism  and  altruism, 
the  one  referable  to  us  as  intellect,  the  other  as  will. 
Egoism  will  not  take  us  outside  our  individuality;  al- 
truism places  us  in  a  general  relation.  Man  should  strug- 
gle against  egoism  and  participate  in  another's  pains, 
and  so  obtain  moral  perfection.  But  since  our  will  can- 
not be  separated  entirely  from  representation,  the  only 
virtue  lies  in  self-resignation  to  fate.  HARTMANN  follows 
Schopenhauer  and  places  the  primal  principle  of  things 
in  the  unknowable.  Hartmann's  unknowable  is  the  ab- 
solute, the  unconscious,  the  unity  of  the  will  and  idea, 
that  is,  of  force  without  thought  and  of  thought  without 
force. 


82  INTRODUCTORY  SURVEY 


XIII 
MATERIALISM,  POSITIVISM,  AND  CRITICISM 

Irrationalism  confuses  the  absolute  with  the  data 
of  experience  or  force;  but  force  cannot  be  conceived 
of  by  itself,  without  thinking  of  the  real  as  a  substance; 
whence  it  follows  that  the  irrational  essence  of  the  world 
is  matter.  Such  is  the  logical  bond  between  the  accen- 
tuated forms  of  rationalism  and  materialism.  The 
principles  of  contemporary  materialism  are  the  unity, 
transmissibility,  and  constancy  of  matter  and  force, 
and  the  circulation  of  the  latter.  From  these  principles 
it  infers  that  mental  force  is  a  property  of  matter,  that 
thought  circulates  as  all  other  forces,  and  that  psychic 
force  is  reducible  to  motion. 

Everything  is  derived  from  matter  and  motion.  With 
the  different  groupings  of  the  atom,  and  the  transfor- 
mation by  motion,  everything  is  explained.  Nothing  is 
known  of  spiritual  entities  apart  from  matter ;  and  there- 
fore one  cannot  speak  of  their  reciprocal  action.  The 
series  of  physical  actions  develops  parallel  to  that  of  the 
psychological  actions,  and  so  the  same  phenomenon  has 
two  aspects  and  is  bilateral,  because  from  an  objective 
point  of  view  it  is  related  to  the  former  series,  while 
subjectively  it  is  referable  to  the  second. 

The  positivism  of  COMTE  declared  impossible  absolute 
knowledge  or  the  knowledge  of  the  primal  cause,  of 
essence  and  finality ;  it  limited  cognition  to  law,  that  is, 
to  the  constant  relation  of  phenomena.  Positive  phil- 
osophy adopts  the  methods  of  the  logical  and  classical 
sciences,  of  which  it  is  a  generalization,  and  therefore 
unifies  the  most  general  laws  of  knowledge  and  gives 
methods  of  discovery  and  proof,  and  establishes  the 


MATERIALISM,  POSITIVISM,  ETC.          83 

control  of  the  sciences  themselves.  The  mind,  accord- 
ing to  Comte,  who  in  this  has  followed  TURGOT,  passes 
through  three  states,  the  theological,  metaphysical,  and 
positive.  In  theology,  the  principles  of  things  are 
divine  entities;  in  metaphysics,  abstract  conceptions 
rule  as  real  causes ;  in  positivism  the  ever-changing  phe- 
nomena, found  by  the  aid  of  experience,  govern  all  rela- 
tions. The  phenomena  are  more  or  less  complex ;  the  more 
simple  are  the  more  general,  and  the  more  complex  are 
the  more  particular.  Their  general  application  is  in 
inverse  ratio  to  their  complexity.  The  sciences,  there- 
fore, can  be  classified  as  follows:  First,  Mathematics; 
second,  Astronomy;  third,  Physics;  fourth,  Chemistry; 
fifth,  Biology;  and  sixth,  Sociology.  This  classification 
is  made  on  the  ground  that  the  last  science  presupposes 
all  the  others  and  that  the  first  presupposes  no  other. 
Astronomy  presupposes  Mathematics,  Chemistry, 
Physics;  Biology  leads  to  the  development  of  Chemis- 
try, and  the  other  sciences  in  the  prior  grade  of  the  classi- 
fication. Sociology  is  the  last  science. 

All  sciences  pass  through  the  three  states,  except 
mathematics,  which  has  no  precedent  theological  state. 
Progress  lies  in  the  gradual  succession  of  states;  Soci- 
ology is  still  concerned  with  metaphysical  entities,  and 
must  be  developed  into  a  state  of  positivism.  In  the 
theological  state  of  social  science,  the  regulation  of  con- 
duct is  given  to  God;  in  the  metaphysical  state,  duties, 
rights,  and  authorities  govern  human  nature,  under- 
stood abstractly  and  hypothetically.  The  principal 
theories  of  liberalism  (for  example,  equality  and  popular 
sovereignty)  belong  to  this  phase,  which  now  should 
belong  to  the  past.  The  revolutionary  doctrine  of 
equality  is  abstract  and  metaphysical  (containing  only 
the  negation  of  fictitious  and  artificial  inequalities). 
The  principle  of  popular  sovereignty  is  not  positive, 


84  INTRODUCTORY  SURVEY 

because  the  people  are  not  capable  of  controlling  the 
State;  it  can  be  received  only  as  a  conception  from 
which  the  people's  right  to  escape  oppression  may  be 
derived.  Sociology  will  effectively  enter  the  third 
phase,  when  it  is  based  on  experience  and  considers 
man  not  as  an  abstract  but  as  a  historical  entity.  His- 
torical experience  determines  and  deduction  proves  the 
laws  of  society,  reconstructing  them,  according  to  the 
laws  of  human  nature,  which  are  as  fixed  as  those  of 
biology.  The  law,  discovered  by  historical  experience, 
is  true  and  necessary,  if  it  harmonizes  with  the  prin- 
ciples of  human  nature.  Sociology  proceeds  from  the 
whole  to  the  parts  (differing  from  the  other  sciences), 
because  it  is  based  on  a  collective  fact.  A  social  phe- 
nomenon has  no  meaning  unless  it  is  put  in  relation  to 
all  the  others  to  which  it  is  connected,  and  unless  it  is 
studied  from  all  its  aspects.  Sociology  is  divided 
into  two  parts:  Statistics,  considering  the  laws  of  equi- 
librium and  the  conditions  of  the  existence  of  the  social 
elements ;  and  Dynamics,  referring  to  motion  and  progress. 
Progress  is  the  prevalence  of  the  highest  human  activity. 
Its  great  factor  is  the  development  of  the  intellect. 

Positivism  does  not  remain  in  its  first  phase,  but  be- 
comes constructive  and  critical.  The  immense  progress 
of  the  natural  sciences,  their  rapid  and  important  dis- 
coveries, and  the  new  physical,  chemical,  and  biological 
theories  furnish  a  more  ample  content  to  positive  phil- 
osophy. Founded  on  the  sciences,  it  cannot  fail  to  be  de- 
veloped and  modified  with  their  advance.  The  doctrine  of 
evolution,  which  has  gradually  developed  in  realm  of  the 
natural  sciences,  with  essentially  an  objective,  experi- 
mental, and  mechanical  character,  has  made  positivism 
evolutionistic.  From  now  on,  positive  philosophy  will 
be  the  general  theory  of  evolution  and  transformation. 
As  the  particular  sciences  advance,  increasing  the  quan- 


MATERIALISM,  POSITIVISM,  ETC.          85 

tity  of  principles  applicable  to  a  growing  number  of 
natural  phenomena,  it  is  not  possible  to  hold  that  the 
essences  and  the  primal  causes  will  remain  eternally 
hidden.  Scientific  experience  refutes  such  a  state- 
ment, therefore  the  mind  must  not  be  forbidden 
to  search  for  the  primal  elements  of  things  created  in 
the  breast  of  positivism.  On  the  other  hand,  mechani- 
cal evolution  cannot  be  applied  in  its  purity  and  sim- 
plicity to  the  phenomenon  of  higher  orders;  and  this 
necessitates  giving  evolution  different  means  according 
to  its  grade  of  existence.  Of  this  new  phase  of  posi- 
tivism, and,  in  particular,  of  the  philosophy  of  Spencer, 
we  shall  treat  at  length  in  the  following  chapters. 

The  ancient  metaphysics  were  destroyed  by  Kant, 
who  corrects  the  ancient  empiricism  with  the  prin- 
ciple of  the  spontaneity  and  originality  of  thought. 
After  Kant,  absolute  idealism  attempted  the  reconstruc- 
tion of  realism  by  dialectics.  And  positivism  made  the 
same  attempt,  using  science  and  experimental  proof. 
Both  movements  were  unsatisfactory  to  many  philoso- 
phers, who  believed  that  the  first  gave  thought  an  objec- 
tivity independent  of  experience  and  separated  it  from 
reality,  and  that  the  second  resulted,  in  the  last  analysis, 
in  materialism,  reducing  everything  to  matter,  motion, 
and  mechanical  laws. 

The  modern  philosophers  on  whom  we  would  lay  em- 
phasis are  the  followers  of  the  NED-CRITICISM,  who  con- 
sider the  analysis  of  knowledge  made  by  Kant  as  a 
fundamental  physical  doctrine,  when  purified  of  the  dog- 
matic residual  of  "the  thing  in  itself."  The  Neo-Critics 
agree  in  stating  that  metaphysics  are  an  illegitimate 
production  of  the  mind,  and  that  modern  experimental 
philosophy  has  not  a  strictly  scientific  character,  in  that 
it  contains  some  presuppositions  of  theory  not  verified 
nor  verifiable.  Some  of  them  think  that  experimental 


86  INTRODUCTORY  SURVEY 

speculation  (though  it  has  not  always  a  truly  scientific 
character)  is  the  best  manner  of  contemplating  reality, 
because  evolutionary  monism  is  the  concept  that  best 
corresponds  to  the  present  state  of  cognition  furnished 
by  the  various  sciences,  but  we  must  not  believe  that 
the  first  principle  has  been  determined  or  the  supreme 
law  of  evolution  shown.  External  observation  (say  these 
Neo-Critics)  gives  us  only  matter  and  motion;  internal 
observation  gives  us  thought  already  formed  and  does 
not  show  us  how  thought  joins  to  the  mechanical  fact. 
In  conclusion,  evolutionary  monism,  according  to  these 
philosophers,  is  more  a  contemplation  than  a  demon- 
stration of  the  real.  It  is  a  useful  hypothesis,  and 
has  more  value  than  dualism,  the  worst  of  the  metaphys- 
ical systems. 

It  is  easy  to  deduce  ethical  ideas  from  the  principles 
upon  which  the  diverse  movements  of  contemporary 
thought  are  based.  It  is  plain  that  hedonism  must  be 
the  basis  of  ethics  in  the  greater  number  of  these  doc- 
trines, which  are  founded  on  the  stimulating  effect  of  pleas- 
ure and  pain,  on  organic  needs  and  utility,  and  proceed 
in  harmony  with  the  laws  of  association,  custom,  heredity, 
and  public  opinion.  To  such  ethical,  juristical,  and 
political  ideas,  and  to  the  theoretical  principles  from 
which  they  spring,  there  will  be  ample  consideration 
given  in  the  general  part  of  this  work. 


BOOK  I 


CHAPTER  I 

THE  IDEA  OF  THE  PHILOSOPHY  OF 
THE  LAW 

PHILOSOPHY  AND  THE  SCIENCES.— THE  CHARACTER  OF  MODERN 
PHILOSOPHY  AS  FORESHADOWED  BY  VICO.—  PHILOSOPHY  OF  THE 
LAW  AS  PART  OF  PHILOSOPHY.— THE  HUMAN  IDEA  OF  LAW 
ACCORDING  TO  THE  DOCTRINE  OF  VICO.  AND  THE  DEFINITIONS 
OF  KANT.  HEGEL.  TRENDELENBURG,  ROMAGNOSI.  AND  ROSMINI. 
—  THE  SOCIAL  AND  LEGAL  THEORIES.— LAW  AND  POSITIVE 
PHILOSOPHY. 

§  1.  Philosophy  and  the  Sciences.  The  mind  is  suited 
by  its  very  nature  to  develop  from  common  and 
superficial  knowledge  of  things  to  scientific  reflection 
indicative  of  causes  and  reasons,  and  from  that  to 
Philosophy,  which  looks  to  the  ultimate  principles 
and  supreme  reason  of  entities  as  parts  of  the  universe. 
Philosophy  is  the  most  general  and  elevated  system  of 
the  fundamental  principles  and  concepts  of  the  mind, 
because  it  tends  to  correlate  fully  and  intimately  the 
mother-ideas,  from  which  the  different  sciences  spring. 
From  this,  it  follows  that  there  is  and  can  be  no  natural 
disagreement  between  the  Sciences  and  Philosophy. 

§  2.  Sciences  Make  for  Unification.  The  demand 
for  a  system  or  deep  organic  correlation  of  ideas  (in 
which  none  can  stand  without  the  others,  and  all, 
interpenetrating,  are  derived  from  a  common  principle) 
is  shown  by  the  history  of  the  positive  and  speculative 
sciences,  which  tend  constantly  to  the  acquisition 


88  THE  PHILOSOPHY  OF  THE  LAW 

of  such  a  form  of  coordination.  Physics,  for  example, 
reviving  the  Cartesian  concept,  makes  clear  the  genetic 
development  of  forces  with  only  two  presuppositions, 
matter  and  motion,  because  it  is  enabled  through  the  new 
and  important  discoveries  to  reduce  the  phenomena  of 
electricity,  magnetism,  heat,  and  light,  to  the  unity  of 
molecular  mechanics. 

§  3.  Philosophy  a  Part  of  every  Science.  If  the  mind 
feels  the  need  of  the  systemization  and  genetic  develop- 
ment in  the  particular  branches  of  knowledge,  it  cannot 
fail  to  feel  it  in  the  broader  sphere  of  complete  knowl- 
edge. And  thus  it  is  that  with  the  growth  of  the  quan- 
tity of  notions  the  necessity  of  their  coordination  arises. 
Philosophy,  which  is  the  ultimate  ideal  of  coordination 
(although  not  recognized  in  that  form  but  rather  as 
the  absolute  centre  of  all  codes  of  knowledge),  gains 
new  life  in  the  realms  of  the  particular  sciences,  which 
are  thus  prompted  to  exceed  their  proper  bounds.  The 
physics  and  chemistries  that  deny  philosophy  become 
metaphysical  and  metachemical,  and  at  the  same  time 
are  based  on  a  philosophical  theory  of  an  original 
atomic  constitution.  Such  a  theory  can  be  called 
philosophical  because  there  is  no  microscope  in  the 
world  that  can  show  the  intimate  and  actual  struc- 
ture of  matter.  No  one  of  the  followers  of  studies 
of  nature,  who  are  enemies  of  philosophy,  keeps 
within  the  bounds  of  his  proper  sphere.  The  phy- 
sicist would  explain  chemical  phenomena  by  mechanics ; 
the  chemist  invades  the  realm  of  the  physiologist; 
and  the  physiologist  usurps  the  office  of  the  psychol- 
ogist. Each  constructs  a  kind  of  philosophy  in  the  re- 
stricted field  of  his  chosen  study  and  nevertheless  all 
of  them  deny  philosophy.  At  one  time  the  Romanist 
was  as  irate  against  science  as  the  theologian,  because 
he  thought  that  the  dictates  of  Roman  legislation  were 


DEPENDS  UPON  THE  SCIENCES  89 

oracles  of  written  reason,  and  he  unceasingly  accused  the 
philosophers  of  a  desire  to  place  their  cerebrine  equity 
at  the  head  of  human  knowledge.  The  anger  has  notably 
decreased  among  the  new  school  of  Romanists,  but 
the  tendency  still  exists  and  is  often  shown.  So  it  is 
that,  with  the  purpose  of  exchanging  rational  for  positive 
law,  philosophy  is  denied  on  one  hand,  and  recognized 
in  a  manner  of  its  own  on  the  other,  by  the  acceptor 
of  the  "jus  positum  in  Romana  civitate  "  as  "ratio." 

§  4.  Philosophy  Depends  upon  the  Sciences.  Since 
philosophy  is  the  science  that  systemizes  the  mother- 
ideas  of  the  particular  sciences,  it  is  evident  that  it 
cannot  be  separated  from  the  latter.  The  natural- 
ists seem  to  desire  to  make  plain  the  schism  by  holding 
up  the  speculative  processes  to  ridicule;  but  this  is 
more  apparent  than  real,  because,  in  the  last  analysis, 
they  only  wish  to  free  the  natural  sciences  from  the  con- 
cepts of  the  old  philosophy  of  the  Middle  Ages,  which 
placed  divine  mysteries  in  the  midst  of  sensible  phe- 
nomena and  confused  them  with  human  purposes,  sym- 
pathies, antipathies,  and  senses.  We  all  know  that 
Galileo  banished  mystery  and  human  prejudices  from 
the  realm  of  nature,  to  which  he  restored  its  proper 
language  by  recognizing  a  profound  and  real  connection 
in  its  various  transformations.  And  apart  from  the 
question  of  Galileo's  conclusions,  it  is  no  longer  a  subject 
of  doubt  that  from  the  coordination  and  subordination 
of  the  most  general  concept  of  various  branches  of 
knowledge  regarding  nature,  there  is  derived  a  natural 
philosophy  not  disjoint  from  the  positive  sciences 
nor  existent  without  their  progress.  Likewise,  we 
must  admit  the  possibility  of  a  supreme  science  of 
history,  in  which  will  be  joined  all  historical  studies 
and  auxiliary  pursuits,  and  of  a  philosophy  of  linguistics, 
which  will  develop  with  an  extended  and  profound 


&0  THE  PHILOSOPHY  OF  THE  LAW 

knowledge  of  the  development  of  words  and  with  the  long 
and  tedious  work  of  comparing  the  forms  of  various  lan- 
guages. 

§  5.  Metaphysics  and  Necessity.  "No  more  meta- 
physics," is  the  cry  of  many.  Distribute  the  objects 
they  comprehend  among  the  different  particular 
sciences.  From  the  criticism  of  philosophy,  they  add, 
arises  its  denial.  But  some  recent  positivists  point  out 
that  the  very  denial  of  philosophy  connotes  philosophy; 
because  it  is  necessary  to  show  the  impossibility  of 
transcendental  knowledge,  this  proof  is  essentially  specu- 
lative and  philosophical,  and  cannot  be  made  except  by 
searching  the  conditions  and  possibility  of  real  knowledge, 
constructing  thus  a  theory  of  cognition  and  a  science, 
that  is,  logic.  Neither  the  origin  nor  value  of  knowledge 
can  be  determined  without  attention  to  the  relation 
between  knowledge  and  its  objects;  whence  the  cosmo- 
logical  doctrine.  From  another  point  of  view,  the  mind 
is  urged  to  discover  the  meaning  of  existence  and  of  the 
reality  of  things  in  regard  to  the  ends  of  life;  and  this 
is  the  origin  of  ethics.  Philosophy  is  the  unity  of  the 
sciences,  those  positivists  continue ;  it  is  the  systemization 
and  critical  analysis  of  the  mother-ideas,  to  which  they 
are  reducible.  The  sciences  presuppose  such  ideas.  Phil- 
osophy is  needed  in  their  discussion,  and  therefore  the 
state  of  dissension  between  this  system  and  the  philosoph- 
ical schools  should  be  no  cause  of  wonder.  If  the  sciences, 
because  of  their  constitution,  do  not  contain  serious 
grounds  of  disagreement  that  make  the  progress  of 
philosophy  hard,  it  is  because  they  do  not  seek  funda- 
mental ideas.  Every  science,  in  its  development, 
discovers  relations  always  more  general,  and  approaches 
the  rules  of  law  that  are  common  to  the  phenomena 
of  different  sciences.  These  laws  can  be  called  cos- 
mic, since  they  connect  mechanical,  chemical,  and 


THE  HIGHEST  PRINCIPLES  OF  LAW       91 

biological  truths.  As  the  sciences  approach  such  prin- 
ciples, the  need  of  metaphysics  is  felt,  which  cannot 
fail  to  be  experimental  and  scientific  in  our  days, 
and  which  should  be  admitted,  according  to  Lewes, 
Wundt,  and  Anguilli,  for  the  reasons  above  indicated. 
Be  that  as  it  may,  it  is  clear  that  Metaphysics 
arise  from  the  grave  to  aid  the  work  of  these  very 
positivists.  Positivism,  says  Anguilli,  in  "La  Filosofia  e 
la  Scuola,"  cannot  remain  dogmatic,  cannot  renounce  the 
search  of  the  principles  of  knowledge  and  existence, 
when  all  the  sciences  are  aimed  at  raising  the  veil  that 
covers  their  origin.  Positivism  should  be  critical. 
It  should  leave  the  questions  about  the  possibility  of  the 
knowledge  of  essences  and  causes  open.  It  cannot  be  said 
a  priori  that  the  essences  and  causes  are  not  knowable 
and  that  it  is  not  possible  to  discover  first  principles. 
This  was  the  mistake  of  Comte,  who  has  reduced  phil- 
osophy to  a  mere  codification  of  natural  law  and  a 
classification  of  the  sciences,  ignoring  its  higher  duty 
to  systematize  the  mother-ideas. 

§  6.  The  Philosophy  of  Law.  The  PHILOSOPHY  OF 
LAW,  a  part  of  philosophy,  is  the  science  of  the  highest 
principles  of  law.  It  should  not,  therefore,  be  separated 
from  the  complexes  of  positive  and  historical  studies 
of  jurisprudence  and  of  social  and  political  sciences. 
It  is  not  in  the  least  possible  to  determine  the  remote 
rationale  of  the  law  considered  by  itself  and  in  its 
relation  to  the  individual,  society,  and  the  State,  apart 
from  its  mediate  and  proximate  principles.  The  mind 
ascends  from  what  is  particular  and  close  to  sense  to 
what  is  universal  and  distant.  It  develops  from  what 
is  only  primal  for  us  to  what  is  primal  for  nature, 
according  to  Aristotle.  Of  course,  whatever  is  par- 
ticular and  positive  is  not  the  direct  and  proper 
object  of  philosophy,  but  'constitutes  the  necessary 


92  THE  PHILOSOPHY  OF  THE  LAW 

foundation  of  it.  Physics,  chemistry  and  biology  are 
not  of  themselves  the  philosophy  of  nature,  but  it 
cannot  be  developed  without  great  reliance  on  such  stud- 
ies. Philosophy  is  always  the  last  to  make  its  appearance ; 
life  must  be  mature  and  the  particular  scientific  modes 
of  knowledge  must  be  numerous  and  developed  before 
we  can  have  a  philosophy.  The  black  bat  of  Minerva, 
as  Hegel  says  on  this  subject,  wings  his  flight  only  in 
the  night. 

§  7.  Character  of  Modern  Philosophy  as  Foreshadowed 
by  Vico.  Modern  philosophy  has  an  original  tendency 
to  keep  itself  free  from  blind  empiricism  and  from  the 
metaphysics  of  abstract  and  empty  thought.  It  is 
fundamentally  one  with  the  metaphysics  of  the 
human  mind  discovered  by  Vico,  which  advance 
with  the  history  of  human  ideas.  What  is  this  human 
idea?  Several  places  in  the  "Scienza  Nuova"  explain 
it  clearly.  The  nature  of  things,  writes  Vico,  is  nothing 
but  their  origin  in  certain  times  and  certain  forms;  and 
as  the  times  and  forms  are,  so  and  not  otherwise  are  things 
born.  Now  this  means,  on  the  one  hand,  that  the 
true  nature  of  things  is  shown  in  motion  and  evolution 
and  does  not  lie  in  quiescent  essences,  placed  beyond  the 
sphere  of  phenomena;  and,  on  the  other  hand,  it  indi- 
cates the  principle  of  necessity  relative  to  certain  times 
and  certain  forms,  very  different  from  the  abstract, 
purely  absolute  logical  necessity.  And  from  this  comes 
the  other  dictum,  that  theory  should  begin  at  the  time 
when  the  matter  of  which  it  treats  begins.  The  true  ob- 
ject of  science  is  to  determine  the  nature  of  beings,  and 
this  lies  in  their  genesis  of  birth. 

§  8.  Vico's  Philosophy  is  Historical  and  not  Abstract. 
To  discover  the  nature  of  human  things,  continues  the 
Neapolitan  philosopher,  we  must  institute  a  severe 
analysis  of  thought  concerning  the  necessities  and 


VICO'S  PHILOSOPHY  PRACTICAL  93 

utilities  of  social  life,  which  are  the  two  perennial  sources 
of  the  natural  law  of  mankind.  And  through  such  a  prin- 
ciple, this  science  is  the  history  of  human  ideas  on  which 
it  seems  the  metaphysics  of  the  human  mind  should  be 
based.  At  this  point,  we  should  remember  the  first  un- 
doubted principle  of  Vico,  which  is  that  the  world  of 
nations  should  find  its  form  within  the  modifications  of  the 
human  mind.  He  founded  on  this  a  science  that  deals 
with  idea  as  it  is  shown  by  actions  —  a  science  that  origi- 
nates and  moves  with  life.  He  was  the  discoverer  of  the 
philosophy  of  history.  The  new  science  withdraws 
from  the  empty  and  transcendental  speculation  of  the 
Middle  Ages  and  advances  to  ideas  intrinsic  in  the  deed, 
that  is,  to  historical  or  human  ideas.  In  this  lies  the 
great  discovery  and  the  great  merit  of  Vico. 

§  9.  Vico's  Philosophy  is  Practical.  The  concep- 
tion of  the  intimate  conjunction  of  philosophy  with 
history  is  -  illustrated  by  Vico  in  three  other  "golden 
passages  "  (as  he  was  wont  to  say  in  speaking  of  the 
words  of  wisdom  of  the  classical  writers).  Philosophy 
contemplates  reason,  whence  arises  the  science  of  the  true ; 
philology  observes  the  authority  of  the  human  free  will, 
whence  comes  the  knowledge  of  the  certain.  Human 
free  will,  of  a  nature  most  uncertain,  becomes  certain 
and  determinate  through  the  common  sense  of  men  in  re- 
gard to  human  necessities  and  utilities.  This  common 
sense  is  a  judgment  without  any  reflection,  commonly 
felt  by  a  whole  class,  people,  or  nation,  or  by  all  of 
mankind.  The  certain  is  referable  to  the  language  and 
acts  of  people;  thus,  at  home  it  is  shown  as  customs 
and  laws,  and  abroad  as  peace,  war,  alliances,  voyages, 
and  trade.  Those  philosophers  who  do  not  make  cer- 
tain their  rationale  under  the  authority  of  philology  fail 
in  their  sphere.  The  philologists  fail  who  do  not  prove 
their  authority  by  philosophical  reasoning.  If  this  had 


94  THE  PHILOSOPHY  OF  THE  LAW 

been  done,  they  would  have  been  more  useful  to  all  coun- 
tries and  would  have  been  foremost  in  developing  this 
science. 

§  10.  Vico  showed  the  Different  Bases  of  Rational  and 
Positive  Law.  Vico  teaches,  in  conformity  with  these 
principles  in  his  book,  "De  Universi  Juris  Principio  et  Fine 
Uno,"  that  the  science  of  law  should  be  based  on  reason  or 
philosophy  and  authority  or  philology,  because  the  law 
concerns  the  true  and  the  certain,  that  is,  reason  and  au- 
thority. The  certain  is  part  of  the  true,  and  authority 
is  part  of  reason  and  is  not  license;  hence  the  distinction 
between  the  reason  of  the  law,  which  makes  for  truth,  and 
the  mind  of  the  law,  which  regards  the  certain.  And  from 
this  comes  the  speculative  thought  of  a  conciliation  be- 
tween positive  and  rational  law.  But  this  last  thought 
has  its  origin  in  a  concept  of  the  philosophers  and 
Roman  jurisconsults.  According  to  Cicero,  the  "jus 
naturae"  depends  upon  the  "naturalis  ratio,"  as  civil  or 
positive  law  gets  its  being  from  "civilis  ratio."  Gaius 
defines  the  "jus  gentium"  as  "Quod  naturalis  ratio 
inter  omnes  homines  constituit."  For  Cicero  and  Gaius, 
therefore,  the  "naturalis  ratio"  is  "constitutivum"  and 
the  common  observation  of  it  by  the  people  is  the 
"consecutivum." 

§  11.  The  Difference  and  Similarity  of  Rational  and 
Positive  Law.  Admitting  the  difference  and  at  the  same 
time  the  connection  between  the  true  and  the  certain,  posi- 
tive law  is  not  entirely  identical  with  nor  entirely  opposed 
to  rational  law.  "  Jus  civile,"  say  sUlpian,  "estquodneque 
in  totum  a  naturali  vel  gentium  recedit  nee  per  omnia  ei 
servit;  itaque  cum  aliquid  addimus  vel  detrahimus  juri 
communi  jus  proprium  id  est  civile  efficimus."  It 
realizes  the  ideal  law,  following  the  law  of  the  evolution 
of  ages,  which  is  the  same  law  as  that  of  the  development 
of  knowledge.  Man's  power  is  only  bounded  by  his 


NOT  BASED  ON  "A  PRIORI "  PRINCIPLES    95 

will,  and  his  will  by  his  knowledge.  As  to  knowledge, 
he  is  first  sense,  then  imagination,  and  finally  reason;  and 
therefore  the  State  must  pass  through  three  ages;  the 
mute,  the  heroic,  and  the  human.  Law  in  its  arboreal 
state  is  legitimate  violence,  later  it  becomes  more  gentle, 
and  attains  perfection  through  naked  truth  and  generous 
reason.  Grotius,  Selden,  and  Puffendorf  are  wrong, 
because  they  do  not  begin  their  theory  from  the  time 
when  nations  began,  but  start  with  their  researches  fur- 
ther on,  that  is,  from  the  first  days  of  the  ennobled 
nations  and  of  men  enlightened  by  fully  developed  natural 
reason.  From  such  nations  came  the  philosophers  who 
developed  by  meditation  a  perfect  idea  of  justice.  The 
system  of  natural  law  cannot  fail  to  be  governed  by  the 
principle  that  the  order  of  ideas  must  proceed  in  accord- 
ance with  the  objective  order.  The  natural  law  of 
nations  has  come  out  of  the  customs  of  the  nations 
mutually  in  accord  in  common  sense,  without  reflection 
and  without  using  one  another  as  an  example. 

§  12.  The  Philosophy  of  Law  cannot  be  Based  on  "a 
priori'1  Principles.  If  law  is  a  human  idea,  if  it  has  truth 
and  certainty,  it  is  not  possible  to  base  the  philosophy  of 
law  on  its  a  priori  principles  alone,  considering  the  fact 
merely  as  an  example,  as  Kant  states  in  his  "Metaphys- 
ische  Anf angsgrunde  der  Rechtslehre ;' '  because  the  certain 
is  always  part  of  the  true  and  enters  into  a  philosophy 
not  as  particular  and  separate  entity,  but  as  a  generalized 
whole.  Philosophy  should  not  be  occupied  with  this  or 
that  reality  in  kind,  but  should  rather  comprehend  and 
explain  reality  of  itself.  Philosophical  reality  is  ideal, 
rational,  conscious,  as  true  ideality  is  of  itself  real.  Kant 
is  wrong  in  excluding  the  certain  in  general  from  the  phil- 
osophical system  of  law,  although  he  is  right  when  he 
recognizes  in  cases  of  experience,  that  is,  in  particular 
and  secondary  forms,  so  many  objects  of  positive  or  his- 


96  THE  PHILOSOPHY  OF  THE  LAW 

torical  law  which  cannot  furnish  philosophy  with  more 
than  material  of  example  or  illustration.  These  cases 
no  longer  belong  to  positive  law,  and  cease  to  be  cases 
when  raised  by  speculation  to  phases  or  moments  of  the 
human  idea  of  law. 

§  13.  Vico's  Theory  Upheld  by  Modern  Philosophers. 
Vice's  conception  of  law  and  his  philosophy  are  sub- 
stantially reenforced  in  the  definitions  cf  the  greatest 
modern  writers.  Hegel,  for  example,  says  ("Grundlinien 
der  Philosophic  des  Rechts,")  that  such  a  science  has  for 
its  object  law  and  its  effectuation.  We  must  not  forget 
that  in  his  mind  the  ideal  is  real  and  the  real  is  ideal,  and 
that  thus  the  idea  by  its  essence  becomes  fact  and  the 
fact  is  part  of  the  idea  of  truth,  taking  the  form  of  the 
certain,  as  Vico  teaches.  In  Hegel's  mind,  not  every- 
thing that  happens  is  ideal,  although  what  happens  and  is, 
as  he  expresses  it,  is  necessary  and  permanent  in  moral 
cosmics,  and  is  therefore  the  actualizaticn  cf  reason. 
Yet  he  warns  us  not  to  put  the  relative  in  the  place  of  the 
absolute  and  to  confuse  historical  explanation  with  judg- 
ment on  the  intrinsic  legitimacy  of  fact.  Trendelenburg, 
in  his  "Naturrecht  auf  den  Grunde  der  Ethik,"  writes 
that  the  philosophy  of  law  should  be  concerned  with  the 
highest  principles  of  law,  which  can  only  be  discovered 
in  history  (wherein  lies,  as  Aristotle  says,  the  test  of  the 
worth  of  all  theories).  He  adds  that  the  rational  and  his- 
torical conceptions,  sometimes  seemingly  in  opposition, 
are  fundamentally  one;  that  man  is  essentially  an  his- 
torical being,  and  that  it  is  not  foreign  to  profound  phil- 
osophical comprehension  to  determine  what  is  the  ideal 
in  each  stage  or  moment  of  the  life  of  a  people.  Among 
the  Italians,  Romagnosi,  who  follows  Vico's  doctrine 
about  the  true  and  the  certain,  admits,  in  his  "Assunto 
Primo  della  Scienza  del  Diritto  Naturale,"  that  natural 
law  is  controlled  by  coercive  reason,  which  affects  objects 


THEORY  OF  THE  POSITIVISTS  97 

according  to  their  position,  and  that  under  this  second 
aspect  it  is  as  pliant  and  variable  as  the  circumstances 
and  changes  of  opportunity.  Finally,  Rosmini  in  his 
"Filosofia  del  Diritto"  very  willingly  agrees  with  the  Ger- 
man philosophers,  who  are  the  followers  of  Kant,  that  the 
historical  element  of  fact  does  not  enter  into  a  science 
which  is  wholly  speculative  reason.  Nevertheless,  he 
speaks  of  an  universal  philosophy  of  law  that  has  three 
parts:  Rational  law,  the  theory  of  positive  law,  and 
their  critic.  The  theory  of  positive  law  and  the  critic 
form  the  philosophy  of  positive  law.  Rosmini  declares 
that  he  desires  to  treat  of  rational  law,  denominated  by 
him  philosophy  of  law,  because  this  title  indicates  the 
above  fusion  of  the  three  parts.  In  other  words,  he 
finds  the  intimate  connection  between  the  true  and  cer- 
tain in  the  separation  of  the  supreme  science  of  law, 
although  he  does  not  conceive  of  law  as  the  human  idea, 
as  an  idea-fact. 

§  14.  Vico's  Theory  is  that  of  the  Positivists. 
Positivist  philosophy  can  be  reduced  to  Vico's  theory, 
which  conceives  of  law  as  a  phenomenal  reality,  as  a  nat- 
ural formation,  seeking  for  its  causes  in  the  social 
element,  in  the  physio-psychical  activities  of  common 
life,  in  the  forces  that  precede  development,  and  in 
the  evolutionary  motion  of  things.  They  agree  in 
explaining  that  this  natural  formation  is  intimately 
connected  with  a  series  of  social  idealities,  anthropol- 
ogy, psychology  of  peoples,  ethnology,  the  history  of 
civilization  and  of  juridical  institutions,  and  compara- 
tive jurisprudence.  Research,  as  can  be  seen,  gives 
preference  to  the  doctrine  of  evolution,  and  is  psycho- 
genetical  and  historical,  because  law  is  particularly  a  fact 
depending  upon  thought  and  will,  and  develops  in  human 
life.  In  other  words,  it  is  an  ethical  and  historical  fact 
whose  primal  elements,  genesis,  and  transformations 


98  THE  PHILOSOPHY  OF  THE  LAW 

philosophy  can  discover.  Now,  Vico  says  it  cannot  be 
denied  that  law  is  a  phenomenal  reality,  since  it  con- 
tains the  certain;  and  can  be  called  a  natural  forma- 
tion, inasmuch  as  its  nature  is  its  origin,  and  as  it  is 
derived  from  the  analysis  of  thoughts  about  the  neces- 
sities and  utilities  of  social  life,  and  from  the  modifica- 
tions of  the  human  mind.  These  social  idealities 
which  the  law  comprehends  and  of  which  it  is  born, 
upon  which  positive  philosophy  often  lays  emphasis,  are 
really  nothing  more  in  Vice's  words  than  the  necessities 
and  utilities  of  social  life. 

§  15.  Vico's  Theory  Considers  the  Influence  of  Eco- 
nomics. The  two  perennial  sources  of  the  natural  law  of 
nations  are  also  connected  with  another  doctrine  now  in 
vogue,  that  is,  with  the  doctrine  that  considers  law  in  its 
social  aspect  in  relation  to  the  purposes,  needs,  and  inter- 
ests of  life.  The  doctrine  is  not  new,  because  the  more 
idealistic  philosophers  have  always  believed  in  the  in- 
fluence of  the  conditions  of  life  on  law.  Among  the  Italians, 
Romagnosi  is  distinguished  for  his  study  of  the  relations  of 
law  with  life,  and  particularly  with  the  latter's  economic 
factors.  In  Germany,  Krause  and  Ahrens,  in  their  defi- 
nition of  law,  lay  stress  upon  its  relation  with  the 
conditions  of  life.  Vice's  necessities  and  utilities  of  social 
life  correspond  to  the  action  of  the  economic  factors, 
though  not  considered  predominant  as  Marx,  De  Greef, 
and  Loria  claim  they  should  be;  they  interpenetrate  with 
the  two  generating  forces  of  law  in  the  concrete  sense, 
which  are,  according  to  Stein,  economic  conditions  and 
the  activity  of  the  State.  Such  activity  follows  the 
thoughts  already  indicated.  The  two  perennial  founts 
are  not  foreign  either  to  the  theory  of  Ihering,  who  teaches 
that  there  is  a  creative  power  in  the  law,  and  that  it  lies 
in  guaranteed  interests.  Ihering  sees  in  the  law  a  system 
of  protected  powers  and  interests,  that  is,  a  system  of 


THE  SOCIAL  RELATIONS  99 

necessities  and  utilities  of  life.  The  two  sources  mean 
simply  the  adaptation  of  human  nature  in  its  external 
and  social  relations  to  this  necessity  and  utility,  an  adap- 
tation which  is  the  chief  feature  of  positive  and  evolu- 
tionistic  philosophy. 

§  16.  Law  must  Consider  the  Social  Relations.  The 
social  theory  of  law  is  not  separable  from  the 
juristic,  if  we  must  consider  law  as  the  human  idea. 
Pachmann  has  recently  attempted  such  a  separation, 
but  the  attempt  was  not  successful.  He  says  that  law  is 
the  measure  of  the  external  freedom  of  man  in  common 
life.  Law  is  thus  reduced  to  a  system  of  norms  which  re- 
gards the  extrinsification  of  wills  and  actions,  and  limits 
their  measure ;  the  mission  of  the  juristic  science,  properly 
so  called,  is  to  show  the  relations,  become  norms  or 
principles,  and  to  work  them  into  a  system,  without  con- 
sidering them  as  facts.  Such  relations,  as  facts,  enter  the 
domain  of  other  sciences  and  can  there  form  objects  of 
the  social  theory  of  law,  in  which  the  measure  of  free- 
dom is  studied  in  respect  to  purposes  and  interests. 
The  true  juristic  theory  is  dogmatics,  which  take  the 
measure  as  fixed  in  amount  and  determine  the  limits 
of  external  freedom  independent  of  objects  as  ends  or  in- 
terests. It  does  not  take  much  proof  to  show  that  the 
juristic  theory  so  conceived  is  an  empty,  abstract  formula 
and  can  be  defined  as  mathematical,  a  computation 
of  concepts,  a  crystallization  of  the  relations  of  life  into 
a  mere  sum,  or  a  logical  whole  resulting  from  minutely 
modulated  rules  and  maxims.  In  such  a  theory,  law 
lacks  concrete  content  and  is  separated  from  life  and 
the  conditions  of  existence,  becoming  a  bare  mathemat- 
ical form.  History  and  reality  have  no  longer  anything 
in  common  with  law,  thus  transformed  into  a  rigid  for- 
mula. The  very  definitions  that  we  find  in  dogmatics 
are  not  all  possible,  because  not  a  few  of  them  have  ele- 


100         THE  PHILOSOPHY  OF  THE  LAW 

ments  derived  from  the  nature  of  things.  The  system  and 
its  technicalities  grow  into  simply  mental  schemes 
divorced  from  life.  Law  ceases  then  to  be  a  reality 
and  a  human  idea. 

§  17.  Vico  believes  that  Phenomena  are  Based  on  Reason. 
The  base  of  phenomenal  reality  is,  in  Vico's  mind, 
reason,  which  is  also  the  base  of  law,  since  history  in 
his  mind  represents  the  true.  Reason  immanent  in 
reality,  the  true  intrinsically  one  with  the  certain,  are 
resolved  in  the  last  analysis  into  a  concept  of  conditions 
necessary  to  existence,  and  the  order  and  constitution 
of  things,  and  also  into  the  unavoidable  effects  of  acts 
about  which  those  positivists  disagree  who  do  not  admit 
absolute  transformism.  In  this  concept  they  place  the 
objective  and  necessary  substratum  of  law,  reproducing 
the  principles  of  Romagnosi.  Law  should  be  based  upon 
the  real  relation  of  things,  and  the  connection  of  their 
cause  and  effect,  so  that  it  should  be  observed  in  conduct 
in  order  to  obtain  the  good  and  avoid  the  bad.  Here 
the  order  of  things  is  not  transcendental,  neither  is 
it  beyond  knowledge,  but  can  be  seen  by  the  mind.  The 
ancient  natural  law  is  wrong,  they  add,  because  it  starts 
out  with  an  a  priori  idea  resting  outside  of  experience 
and  life  and  not  because  it  seeks  a  necessary  and  univer- 
sal principle. 

§  18.  Vanni's  Philosophy  of  Law.  The  philosophy 
of  law  in  critical  positivism,  writes  Vanni,  in  "II  Pro- 
blema  della  Filosofia  del  Diritto,"  is  the  science  of  the 
first  principles  of  the  genetico-evolutionary  theory.  It 
is  the  analysis  of  the  possibility  and  value  of  juristic 
knowledge.  It  is  the  doctrine  of  the  norms  of  action 
coordinated  in  a  purposeful  system.  In  its  first  aspect, 
it  is  the  synthesis  of  the  mother-ideas  of  all  branches 
of  positive  and  particular  knowledge,  and  there  can  be 
no  doubt  on  this  point  when  we  have  once  recognized 


POSITIVISTS  ARE  WRONG  101 

the  existence  of  such  a  study.  Also,  it  cannot  be 
denied  that  it  has  also  a  critical  duty  and  practical  func- 
tion, because  it  is  called  upon  to  analyze  the  idea  of  law 
and  to  determine  its  value  by  an  examination  of  the 
logical  processes  which  are  applied  to  it.  Is  not  this 
philosophy  perhaps  essentially  a  theory  of  knowledge? 
And  can  philosophy  cease  to  be  a  criticism  of  knowledge 
when  it  treats  of  law?  If  philosophy  of  law  is  a  part 
of  ethics  and  if  ethics  explain  the  first  principles  of  con- 
duct, it  is  clear  that  it  should  give  norms  for  con- 
duct. When  it  is  a  question  of  a  fact  of  conduct,  the 
study  of  the  phenomena  is  not  enough,  but  we  must 
know  the  reasons  that  induce  us  to  favor  or  disfavor  its 
continuation  in  conformity  to  an  ideal.  It  is  said,  and 
correctly  so,  that  ethics  are  a  practical  science,  that 
they  not  only  seek  the  laws  of  moral  acts  but  de- 
termine the  methods  best  adapted  to  changing  them  in 
order  to  reach  a  state  of  perfection  that  does  not  yet 
exist. 

§  19.  The  Positivists  are  Wrong  in  Denying  Special 
Philosophies.  There  are  positivists  who  do  not  wish  to 
recognize  special  philosophies  and  therefore  deny  the 
philosophy  of  law,  with  the  others.  They  say  that  there 
is  only  one  philosophy  which  unifies  all  knowledge  (as 
Spencer  taught).  The  highest  truths  about  one  branch 
of  knowledge  regard  determinated  orders  of  fact,  and  form 
one  or  more  sciences  but  never  a  philosophy.  These 
positivists  do  not  reflect  that  if  special  philosophies  are 
part  of  the  great  philosophy,  or  the  system  of  the  supreme 
principles  of  entire  knowledge,  they  should  not,  therefore, 
be  deprived  of  a  distinct  existence.  The  special  phil- 
osophies presuppose  the  coordination  of  the  first  prin- 
ciples of  all  knowledge,  but  they  develop  it  fully  with 
respect  to  the  few  objects  to  which  they  apply,  determin- 
ing their  particular  method  of  existence  and  emphasizing 


102          THE  PHILOSOPHY  OF  THE  LAW 

the  differences  or  proper  forms  in  relation  to  such  objects. 
The  special  philosophies  are  not  detached  and  independ- 
ent of  philosophy,  they  cannot  be  separated  from  phil- 
osophy, but  lead  to  theories  which  show  the  various 
contact  of  first  principles  with  the  diverse  entities  whose 
elements  they  search  for.  Certainly,  philosophy  in 
general  without  the  special  philosophies  would  not  be 
able  to  give  sufficient  development  to  the  treatment  of 
supreme  principles,  since  they  apply  in  different  manners 
to  different  objects.  We  will  see  in  the  following  pages 
whether  it  is  possible  to  apply  purely  and  simply  the  more 
general  laws  of  the  cosmos,  for  example,  the  physical 
and  mechanical  laws,  to  all  the  products  of  evolution. 
Whoever  attempts  to  do  it  runs  the  risk  of  not  explain- 
ing the  nature  and  value  of  the  higher  products  of  histori- 
cal and  ethical  facts.  It  cannot  be  doubted  that  they 
who  will  not  accept  the  special  philosophies  because  of 
a  single  philosophy,  obscure  the  real  difference  of  entities 
and  tend  to  show  unity  or  identity  where  none  exists. 
Scientific  and  philosophical  discovery  should  be  com- 
plete and  should  not  disregard  a  difference  because  of 
a  preconceived  unity,  nor  sacrifice  unity  to  a  preconcep- 
tion of  difference.  It  is  not  its  duty  to  alter  the 
effectual  truth  of  things. 

§  20.  Distinction  between  the  Philosophy  of  Law  and 
the  Science  of  Legislation.  We  must  guard  ourselves, 
in  considering  the  philosophy  of  the  law,  against  an 
error  contained  in  the  books  of  Sumner  Maine  on  the 
history  of  primitive  institutions  and  of  law.  Maine  be- 
lieves that  the  attempt  to  build  up  a  system  of  jurispru- 
dence on  observation,  comparison,  and  analysis  of  ideas 
is  due  to  Bentham,  and  even  more  to  Austin,  who  are 
very  unjustly  not  known  out  of  England.  Austin  and 
Maine  think  that  the  object  of  jurisprudence  is  positive 
law  and  that  jurisprudence  can  either  be  particular  and 


LAW  AND  LEGISLATION  103 

national  or  general  and  comparative.  This  is  the  result 
of  abstraction,  because  the  identical  principles  of  the 
various  legislative  systems  are  the  same.  General  juris- 
prudence is  called  by  these  two  writers  the  philosophy 
of  positive  law.  The  philosophy  of  positive  law  differs 
from  the  science  of  legislation,  because  the  former 
studies  the  laws  as  they  are,  and  the  second,  a  branch  of 
ethics  or  deontology,  shows  how  the  laws  should  be  made 
so  that  they  will  conform  to  a  type,  that  is,  the  divine 
law  identified  with  the  principle  of  general  utility. 
Putting  aside  this  last  element  of  the  theory,  which 
Maine  denies,  because  such  identity  is  not  proved  or 
provable,  it  is  undoubtedly  true  that  general  and  com- 
parative jurisprudence  is  very  remote  from  the  phil- 
osophy of  law  in  the  true  sense  of  the  word.  Philosophy 
of  law  is  the  search  of  first  and  supreme  principles,  while 
general  jurisprudence  recognizes  similarities  of  fact, 
or  homonyms,  and  does  not  consider  the  reasons.  The 
analysis  of  ideas  in  which  this  jurisprudence  is  so  valuable 
never  reaches  a  philosophical  height.  Rosmini's  phil- 
osophy of  law  is  something  very  different,  it  is  a  higher 
study.  It  is  not  purely  rational  law,  but  is  rational  law 
applied  to  the  science  of  legislation  and  to  the  critic  of 
law. 


104  LAW  AND  LOGICAL  METHODS 


CHAPTER  II 
THE  IDEA  OF  LAW  AND   LOGICAL  METHODS 

INDUCTION  AND  DEDUCTION.  —  INDUCTION,  OBSERVATION,  AND 
EXPERIMENT.  — THE  IDEA  OF  NATURAL  LAW  AND  THAT  OF  THE 
CIVIL  GOOD  (OF  AMARI)  AS  SHOWN  BY  INDUCTION. —  THE  IM- 
PORTANCE OF  THE  COMPARATIVE  HISTORICAL  METHOD  USED  BY 
VICO.  AMARI,  POST,  AND  MAINE.  —  PARALLELISM  IN  THE  DEVELOP- 
MENT OF  LANGUAGE  AND  LAW.  —  STATISTICAL  INDUCTION.— 
THE  DUTY  OF  DEDUCTION.  —  THE  ABSTRACT  AND  CONCRETE 
UNIVERSALS  AS  PRINCIPALS. 

§  21.  Law  must  be  both  Abstract  and  Relative.  If  law 
has  in  it  elements  of  the  true  and  certain,  it  cannot 
be  explained  in  its  integrity  by  abstract  rationalism  de- 
veloped in  a  series  of  schemes  fixed  by  reason,  nor  by 
absolute  relativism  which  sacrifices  the  ideality  and 
necessity  of  the  law  to  the  continuous  and  contradictory 
happening  of  events. 

§  22.  Law  must  be  Developed  Inductively  and  Deduc- 
tively. Vico  himself  determined  the  logical  process  by 
which  the  idea  of  law  should  be  developed,  in  these  words: 
The  order  of  human  ideas  is  to  observe  like  things,  first 
to  know  and  then  to  prove  them ;  that  is,  first  with  the  ex- 
ample, content  with  one  thing,  and  later  by  induction, 
which  has  need  of  more.  Socrates,  the  father  of  all  phil- 
osophical schools,  introduced  dialectics  with  induction 
and  later  Aristotle  completed  them  with  the  syllogisms 
which  have  no  application  without  a  universal.  Hence 
it  follows  that  the  human  idea  is  first  inductive  and  then 
deductive.  In  fact,  the  mind  proceeds  from  the  partic- 


METHODS  OF  INDUCTION  105 

ular  to  the  discovery  of  the  laws  and  causes  of  phenomena. 
It  does  not,  however,  develop  the  rational  necessity 
of  the  discovered  law,  nor  the  method  of  causal  ac- 
tion within  the  empirical  confines  of  induction.  It 
is  a  deductive  process  that  leads  to  the  proof  of  the 
rational  necessity  of  law,  deriving  it  from  a  general 
principle,  and  making  clear  the  manner  in  which  one 
condition  joins  another  to  produce  a  phenomenon.  When 
these  ideas  are  accepted,  we  can  infer  that  the  more  the 
certain  is  studied  in  juristic,  social,  and  political  ques- 
tions, the  broader  will  the  true  become.  The  certain 
in  such  a  subject  assumes  the  form  of  an  historical 
fact  or  event,  which  becomes  a  numerical  series  or  statis- 
tical element,  thus  furnishing  material  for  historical  and 
mathematical  induction. 

§  23.  The  Four  Methods  of  Induction.  Historical 
induction  is  based  more  upon  the  observation  of  social 
phenomena,  including  juristical  and  political  events, 
than  on  experiment,  because  the  social  phenomena  are 
even  more  complicated  than  the  natural  (especially 
the  physical  and  chemical)  and  therefore  lend  them- 
selves less  to  artificial  reproduction  and  voluntary 
variation.  Experiment  can  be  made  in  four  ways, 
that  is,  by  the  method  of  agreement,  by  the  inverse 
method  of  difference,  by  the  third,  of  concomitant 
variations,  and  the  last,  of  the  residues.  The  first 
is  reducible  to  the  elimination  of  various  conditions 
and  to  keeping  one  as  the  antecedent  of  a  phenomenon. 
The  second,  on  the  contrary,  consists  in  the  abstraction 
of  identical  conditions  and  in  keeping  to  the  one  that 
varies  as  cause.  The  method  of  concomitant  variation 
is  based  upon  the  principle  that  a  phenomenon  that 
varies  in  accordance  with  another  is  its  cause  or  effect 
or  is  at  least  connected  with  it  by  a  chain  of  general 
causality.  The  fourth  is  governed  by  the  following  law: 


106  LAW  AND  LOGICAL  METHODS 

"Subduct  from  any  phenomenon  such  part  as  is  known 
by  previous  inductions  to  be  the  effect  of  certain  ante- 
cedents and  the  residue  of  the  phenomenon  is  the  effect 
of  the  remaining  antecedents."1 

§  24.  The  Experimental  Methods  Possible  in  Physiology. 
There  was  a  time  when  it  was  believed  that  the  use  of 
experiment  would  not  be  possible  in  biological  research. 
In  the  century  just  past,  Cuvier  stated  that  physiology 
was  the  science  of  mere  observation,  but  in  our  own  day 
vivisection  has  taken  remarkable  strides.  All  the 
famous  physiologists  adopt  experimental  methods,  al- 
though they  freely  state  that  experiment  in  physiology 
has  not  the  extension  and  logical  force  which  it  has  in 
physics  and  chemistry.  They  show  the  laws  of  the  union 
of  the  internal  principle  with  the  body,  that  is,  the  union 
of  psychical  and  organic  action  through  the  method  of 
agreement.  In  a  great  number  of  cases,  this  agreement 
can  be  established,  though  in  others  the  profundity 
of  the  reflective  operation  and  the  subtleness  of  the 
physical  act  escape  observation.  But  even  if  these  cases 
do  not  confirm  the  results  of  agreement,  they  fail  to 
prove  the  contrary.  Through  this  same  method,  asso- 
ciated with  the  other  of  concomitant  variations,  the 
modern  physiologists  show  the  law  of  relativity;  that  is, 
the  connection  between  the  cause  of  an  impression  and 
a  state  of  consciousness,  and  through  the  agreement  of 
all  the  experimental  methods  are  illustrated  the  laws 
of  memory  and  the  conception  of  similarity. 

§  25.  The  Experimental  Methods  Possible  in  Political 
Sciences.  Bain,  in  his  "Logic,"  determines  the  principle 
of  the  logic  in  the  political  sciences  and  recognizes,  in 
opposition  to  Stuart  Mill,  that  in  politics  the  above 
methods  offer  useful  help  when  they  are  applied  with  all 
the  limitations  and  cautions  suggested  by  the  particular 

Will's  Fourth  Canon. 


HUMAN  IDEA  OF  LAW  107 

nature  of  social  science  (which  is  by  far  the  most  com- 
plicated). Mill  excludes  experiment  from  political 
economy  because  the  phenomena  of  wealth  are  extremely 
complicated.  Experiment  in  social  science  (Bain  points 
out)  does  not  mean  the  application  of  processes  adapted 
to  the  discovery  of  natural  laws.  So,  for  example,  the 
method  of  difference  is  not  conducive  to  certain  results 
about  the  facts  of  civil  life,  since  one  cannot  be  sure  that 
the  condition  found  is  the  sole  effect  or  that  there  are  not 
unknown  causes.  But  such  uncertainty  is  lessened  if  a 
force  suddenly  introduced  is  followed  instantly  by  a 
change.  Take,  for  example,  a  suspension  of  diplomatic 
relations  between  two  nations  coinciding  with  a  marked 
change  in  commercial  values.  On  such  a  hypothesis 
there  are  reasonable  grounds  for  believing  that  the 
severance  has  produced  the  disturbance. 

§  26.  Vico's  Human  Idea  of  Law  proved  by  Historical 
Induction.  From  historical  induction,  founded  more 
on  observation  than  on  experiment,  is  derived  the 
human  idea  of  the  law.  In  fact,  the  mind  forms 
of  itself  the  concept  of  a  natural  law  common  to  all, 
after  gathering  and  comparing  many  homonyms  or 
similarities  between  the  diverse  positive  laws  of  dif- 
ferent nations.  In  a  universal  consensus,  in  uni- 
formity, or  in  the  constancy  of  jurisprudence,  there 
is  not  a  "ratio  juris"  but  the  "principium  cognoscendi." 
Uniform  ideas,  writes  Vico,  appearing  among  entire 
peoples,  unknown  to  each  other,  must  have  a  common 
motive  of  truth.  This  shows  the  great  principle  that 
establishes  the  general  consensus  of  opinion  of  mankind 
as  the  criterion  taught  the  nations  by  divine  Providence 
to  define  the  certain  in  relation  to  the  natural  law  of  na- 
tions. And  even  before  Vico,  Grotius  stated  that  there 
was  a  posteriori  proof  of  natural  law,  if  not  absolutely 
conclusive,  at  least  highly  evidential,  by  which  we  must 


108  LAW  AND  LOGICAL  METHODS 

consider  as  law  what  is  held  as  such  by  all  nations  or 
by  the  more  civilized  nations,  because  a  universal  effect 
supposes  a  universal  cause.  A  universal  belief  cannot 
arise  except  from  what  is  called  the  general  consensus 
of  opinion.  Cicero  had  already  written,  "Omnium  con- 
sensus naturae  vox  est."  "Omni  autem  in  re  consentio 
omnium  gentium  lex  naturae  putanda  est."  And  Aris- 
totle had  not  failed  to  notice  that  there  was  something 
which  all  alike  believe  and  which  was  by  nature  common 
and  was  called  law  or  justice,  although  there  was  no 
agreement  or  communication.  Socrates  was  the  first 
philosopher  to  speak  of  the  unwritten  laws  of  the  gods  — 
of  universal  observance.  He  gives  as  examples  religion 
and  ancestor  worship.  Uniformity  is  the  cognitive 
criterion  of  natural  law  as  shown  by  the  very  arguments 
of  those  who  do  not  believe  in  it.  Carneades,  Sextus 
Empiricus,  and  their  followers  denied  that  there  was 
a  natural  law  putting  antinomies  in  place  of  similarities, 
which  shows  that  they  implicitly  admitted  the  above 
criterion;  they  did  not  believe  that  there  was  a  law 
of  nature  because  the  discrepancy  and  contrast  between 
the  laws  of  nations  were  so  great  that  they  could  not 
believe  in  a  true  and  extended  harmony.  If  this  were 
not  so,  and  the  concordance  reducible  to  a  frac- 
tional part  (they  said),  there  would  be  a  natural  law  and 
they  would  recognize  it. 

§  27.  Induction  is  Used  in  the  Critic  of  Law. 
In  the  other  parts  of  philosophy  of  law  and  especially 
in  those  composing  (according  to  Rosmini)  the  philos- 
ophy of  positive  law,  that  is  in  nomothesis  and  in  the  critic 
of  law,  historical  induction  furnishes  the  first  concepts. 
Nomothesis  and  the  critic  of  the  law  are  not  possible 
without  the  principle  of  the  just,  which  is  always  the 
human  idea,  and  without  the  concept  of  the  civil  good, 
of  which  Amari  treats  in  "Critica  di  una  Scienza  della 


FOLLOWERS  OF  VICO  109 

Legislazione  Comparata,"  or  of  the  just  in  given  form 
in  relation  to  the  time  and  place  and  condition  of  a 
determinate  life.  The  mind  raises  itself  in  such  a  prin- 
ciple inductively  through  the  collective  similarities  of 
law  and  their  equation.  It  is  not  difficult  to  see  that  the 
concept  of  civil  good  is  formed  in  this  way  through 
the  long  experience  of  social  institutions  and  domestic 
and  foreign  laws.  Plato,  the  great  idealist,  compared 
the  laws  of  different  nations;  he  taught  that  the  City 
would  never  be  happy  and  civilized  while  ignorant  of  the 
good  and  evil  of  the  regulations  of  other  countries. 
Aristotle  collected  notes  on  many  constitutions  and 
placed  great  reliance  on  legislative  comparison  dis- 
tinguishing the  absolute  good  from  the  possible  and  con- 
ditional. Thus  he  founded  the  school  that  gives  great 
importance  to  the  comparison  of  the  laws,  which  was 
taught  by  Theophrastus,  Dicearchus,  and  Demetrius 
Phalareus. 

§  28.  Followers  of  Vico  and  the  Historico-Comparative 
Method.  After  Vico  and  Amari,  the  historico-comparative 
method  was  applied  by  Volcraff,  who,  however,  did  not 
have  sufficient  material  at  his  disposal,  and  by  Bastiat, 
who  had  made  ethnological  researches  without  philosoph- 
ical intent,  and  by  Post,  who  in  his  "Einleitung  in  die 
Studien  der  Ethnologische  Jurisprudenz"  tends  to  an 
experimental  philosophy  of  law  founded  on  ethnological 
data  and  on  the  principle  of  the  dependence  of  the  jurid- 
ical fact  on  other  precedent  facts  in  the  cosmic  series. 
Maine  is  the  author  of  very  important  studies  of  an 
historico-comparative  character.  He  is  a  thinker,  how- 
ever, and  not  a  philosopher,  although  he  rises  to  gen- 
eralizations that  are  close  to  philosophical .  He  reconstructs 
the  fragments  of  the  social  and  juristical  life  of  the  Aryan 
peoples  of  a  primitive  age  and  gives  us  a  paleontology, 
an  archeology,  and  a  moral  embryology,  and  tends  to 


110  LAW  AND  LOGICAL  METHODS 

show  the  development  and  indicate  the  evolution  of  the 
idea  of  law  in  the  consciousness  of  that  race,  developing 
sometimes  into  the  philosophy  of  the  history  of  law. 
Vanni  in  "Gli  Studi  di  Somner  Maine  e  le  Doctrine  della 
Filosofia  del  Diritto"  determines  clearly  the  nature  of 
the  complete  researches  of  this  writer  and  notes  the  dif- 
ference between  his  work  and  that  of  the  others.  Maine 
applies  the  comparative  method  to  the  progressive  or 
undeveloped  nations  of  different  races.  He  is  circumspect 
and  diffident  about  great  syntheses  and  ethnological 
theories  and  does  not  put  great  weight  upon  the  analogies 
between  modern  savages  and  primitive  people.  Most 
sociologists,  on  the  contrary,  love  great  syntheses,  prefer 
ethnological  intuitions,  and  use  without  scruple  the  above 
analogies.  Since  Maine  was  an  historian  and  not  a  phil- 
osopher, it  is  useless  to  search  his  works  for  a  complete 
and  satisfactory  doctrine  of  the  genesis  of  law.  His 
observations  begin  with  a  state  of  evolution  relatively 
advanced  and  refer  to  law  when  it  is  already  formed,  and 
therefore  do  not  contain  a  true  social  and  juridical  em- 
bryology. 

§.  29.  Parallelism  in  the  Development  of  Language  and 
Law.  The  inductive  formation  of  the  above  two  branches 
of  the  philosophy  of  law,  understood  in  a  broad  sense,  is 
revealed  in  the  parallel  between  languages  .and  law, 
first  noticed  by  Plato  and  later  by  Vico,  Savigny,  Puchta, 
Amari,  Ihering,  and  now  outlined  among  the  Italians 
according  to  the  results  of  positivism  by  Gaudenzi 
in  his  book  "Lingua  e  Diritto."  The  parallelism  is  real, 
because  language  reflects  the  thought  and  law  manifests 
the  acts  of  man ;  the  intrinsic  connection  between  thought 
and  action  is  known.  In  concrete,  the  productive  genius 
of  a  people  has  the  same  powers  in  language  and  in  law. 
A  proof  of  it  is  the  character  of  Latin  language  in  civili- 
zation and  the  historic  meaning  of  Roman  law.  Action 


PARALLELISM  IN  DEVELOPMENT        111 

presupposes  will  and  thought  and  is  posterior  to  them; 
therefore  the  development  of  language  must  be  antece- 
dent to  that  of  law.  When  Rome  was  founded  the  Latin 
language  was  formed,  but  the  Twelve  Tables  appeared 
three  centuries  later.  The  literary  language  was  perfect 
at  the  fall  of  the  Republic,  but  the  development  of  law 
was  only  complete  towards  the  end  of  the  Empire.  There 
are  local  provincial  dialects  and  national  languages  as 
there  are  customs  of  county  and  statutes  and  national  law. 
Experience  teaches  us  that  language  and  national  law 
are  always  derived  from  the  generalization  of  a  local 
dialect,  and  of  the  customs  or  laws  of  a  particular  prov- 
ince. At  the  beginning,  language  had  only  enough  words 
to  express  sensible  objects  and  law  was  active  only  in  the 
confines  of  material  facts;  later  there  appeared  the 
metaphor  in  language  and  the  law  developed  through 
symbols.  The  metaphor  and  symbol  raised  the  mind  from 
the  simple  perception  of  the  object  of  sense  to  the  concep- 
tion of  intellectual  facts  and  abstract  ideas.  Language 
went  through  three  stages.  The  first  is  called  monosyl- 
labic, and  is  formed  of  independent  roots  which  do  the 
duty  of  both  nouns  and  verbs;  the  second  is  called  ag- 
glutinative, because  the  roots  are  placed  together,  though 
without  internal  variation,  to  express  the  various  relations 
of  thought;  and  the  third,  in  which  the  associated  roots 
are  welded  together  in  a  homogeneous  whole,  is  called 
inflective.  In  law,  there  are  three  such  distinct  periods, 
because  the  elements  of  juristic  action  are  first  shown  in 
a  distinct  and  independent  existence,  then  they  unite 
mechanically,  and  finally  interpenetrate  in  a  single 
logical  whole.  The  customs  of  barbarians,  composed 
of  a  most  complicated  system  of  petty  rights,  joined  to- 
gether only  by  tradition  in  the  main,  correspond  to  the 
agglutinative  stage.  In  the  first  steps  of  civilization, 
states  are  found  connected  by  language  or  by  law  for 


112  LAW  AND  LOGICAL  METHODS 

commerce  or  for  some  other  reason.  Grammar  or  the 
nomothesis  of  language  and  criticism  appear  with  the  de- 
velopment of  language  and  art.  First  came  Homer  and 
Pindar,  and  then  Praxiphanes  and  Aristarchus;  first 
Ennius  and  Plautuswere  admired  and  then  came  Orbilius 
and  Opilius.  The  same  happened  in  respect  to  law,  which 
preceded  the  science  of  law  and  philosophy.  Plato  and 
Aristotle  were  only  possible  after  Lycurgus,  Solon,  and  the 
other  legislators.  Later  philological  studies  consisted 
in  the  researches  of  etymology,  to  which  the  first  labors 
of  the  Greeks  are  referable.  After  laws  had  been  estab- 
lished, jurisprudence  investigated  their  genesis,  and  the 
most  celebrated  jurisconsults,  such  as  Labeo,  Gaius,  and 
Ulpian  wrote  on  this  subject.  From  etymology  joined  to 
grammatical  studies  there  was  an  infinite  distance 
to  a  science  of  comparative  linguistics,  as  there  was 
a  veritable  abyss  between  the  parallelism  of  laws  joined 
to  nomothesis  and  a  science  of  comparative  legislation. 
§  30.  Statistical  and  Mathematical  Induction.  In  the 
juristic,  social,  and  political  sciences,  mathematic  or 
statistic  induction  is  joined  to  the  historical.  The  order 
of  numbers,  observes  Vico,  although  of  simple  and  ab- 
stract things,  is  a  help  to  the  large  and  compositive  order 
of  human  and  civil  affairs.  (Statistical  induction, 
starting  out  with  a  group  of  homogeneous  or  comparable 
facts  gathered  in  the  greatest  number,  reduces  them  to  an 
average  which  represents  the  mean  between  the  various 
extremes,  a  determinate  quantity  which  is  the  most  ap- 
proximate sum  of  the  many  diverse  numbers  of  like  and 
various  terms.)  The  mean  itself  is  a  numerical  formula 
of  the  constant  law  that  governs  the  quantity  of  a  social 
fact  in  a  period,  and  therefore  shows  a  general  condition. 
Mathematical  induction  (that  succeeds  to  such  a  mean) 
is  a  proper  instrument  of  a  statistical  science,  that  is, 
the  systematic  position  of  the  social  life  of  man  and  of 


STATISTICAL  INDUCTION  113 

the  laws  which  arise  from  it,  based  on  observation  in  mass. 
Mathematical  induction  per  se  is  the  mainstay  of  logic 
and  is  applied  without  distinction  to  social  and  natural 
facts.  But  it  remains  a  method  for  natural  facts,  and  con- 
stitutes an  autonomous  study  of  social  facts  and  is  called 
statistics.  The  reason  of  this  is  shown  by  Rumelin  in  his 
treatise  on  statistics,  when  he  says  that  in  nature  unity 
is  typical,  and  in  the  human  world  it  is  individual.  In 
the  observation  of  a  natural  fact,  all  the  facts  of  the  same 
kind  are  observed;  but  when  a  person  is  the  subject  of 
observation,  society  is  not  included  in  it.  Since  society 
is  a  composite  of  very  dissimilar  individuals,  the  princi- 
pal means  to  find  the  roots  of  the  laws  of  that  organism 
must  lie  in  the  observation  of  the  mass.  Experiment 
in  this  field  of  research  takes  a  secondary  place  and  ob- 
servation of  the  mass  prevails ;  in  the  natural  sciences  the 
contrary  is  true.  Wagner  in  "Statistische  Anthropolo- 
gische  Untersuchung  der  Gesetzmassigkeit  in  dem 
Scheinbar  Willkiirlichen  Menschlichen  Handlungen" 
thinks  that  Rumelin  generalizes  too  much,  because  it  is 
true  only  in  physics  and  chemistry  that  every  case  is 
typical  and  true,  and  not  in  biology.  Physiological  pro- 
cesses bring  in  constant  and  accidental  causes  which  com- 
bine in  a  various  and  indefinite  manner,  and  therefore 
the  phenomena  of  this  kind  present  irregular  and  peculiar 
characteristics.  Certainly  in  the  higher  grades  of  the 
evolution  of  nature  there  are  found  phenomena  more  com- 
plicated, changeable,  and  irregular  than  in  the  lower.  But 
the  combination  and  the  variety  of  the  superior  forces 
of  nature  should  not  be  exchanged  for  human  individu- 
ality that  results  from  auto-consciousness  and  auto- 
determination,  which  are  shown  in  the  duosyllabic  ego. 
In  this  sense,  Rumelin  is  right  in  recognizing  that  as  we 
ascend  in  the  series  of  organisms,  a  greater  number  of 
factors  are  seen  in  organic  life,  the  combinations  become 


114  LAW  AND  LOGICAL  METHODS 

more  complex,  and  the  field  of  variations  extended,  and 
that  in  the  physical  and  human  world  there  is  a  grada- 
tion and  not  an  absolute  separation  between  what  is 
typical  and  what  is  individual.  No  grain  of  sand,  no 
blade  of  grass  resembles  exactly  another  grain  or  blade, 
but  here  the  dissimilarities  are  small  in  comparison  to  the 
similarities  and  are  due  to  external  circumstances. 
In  the  human  world,  the  savage  is  less  individual  than 
the  civilized  man,  the  negro  less  than  the  white,  the  man 
of  the  Middle  Ages  less  than  the  man  of  to-day,  the  woman 
less  than  the  man,  the  ignorant  less  than  the  wise, 
the  brute  less  than  him  of  gentler  feelings. 

§  31.  Need  of  Statistics.  Statistical  induction  shows 
through  numbers  the  constancy  and  regularity  of  social 
phenomena,  and  increases  the  measure  of  the  certain, 
completing  the  work  of  historical  induction,  which 
shows  their  quality.  Numbers,  weight,  and  measure 
are  not  elements  foreign  to  law,  because  it  is  generally 
thought  of  as  a  rule  of  proportion,  and  by  the  Pytha- 
goreans was  confused  with  numbers  themselves.  The 
intellect  attains  more  easily  the  idea  of  measure  or 
proportion  of  reason,  in  which  the  law  rests,  after 
noting  the  certain  by  observation  and  after  measuring 
it  by  mathematical  induction.  Numbers  logically  con- 
sidered are  intermediate  elements  between  the  sensible 
fact  and  pure  imagination,  and  therefore  Plato  and  Galileo 
placed  mathematics  between  physic  and  metaphysics. 
This  helps  us,  because  the  progress  of  the  physical 
sciences,  lying  principally  in  substituting  the  expres- 
sion of  quantitative  for  qualitative  functions,  leads  also 
to  an  increase  of  the  rational  and  apodeictical  parts  of  the 
same  study.  The  relation  between  statistical  induction, 
nomothesis,  and  the  critic  of  law  is  manifest,  because  the 
concept  of  the  civil  good  presupposes  the  concept  of  vary- 
ing social  conditions,  which  are  shown  in  statistics,  that 


DUTY  OF  INDUCTION  115 

is,the"nosce  teipsum"  applied  to  the  civil  union  and  the 
State,  and  represents  the  balance  of  the  forces.  There  is 
no  important  act  of  republican  administration  that  can 
be  separated  from  the  knowledge  that  the  State  should 
have  of  itself  or  be  entitled  to  as  the  measure  or  the  de- 
gree of  its  own  power.  And  here  is  the  first  reason  why  in 
our  day  statistics  perform  a  public  service.  But  there 
is  a  second,  and  it  lies  in  the  demand  of  unlimited  pub- 
licity, since  the  government  is  free.  And  even  those  who 
profess  individualistic  theories  and  look  upon  the  State 
as  only  a  means  of  legal  protection,  allow  it  such  a 
function,  because  statistics  are  not  a  business  and  can- 
not be  gathered  by  private  citizens  without  the  State's 
intervention. 

§  32.  The  Duty  of  Induction.  If  experience  without 
a  concept  is  no  guide  and  the  concept  without  sensible 
data  is  useless,  science  is  not  possible  without  both  in- 
duction and  deduction.  Induction  without  deduction 
is  an  empirical  process  only  and  does  not  show  the  ne- 
cessity of  the  causal  law  or  its  method  of  action. 
Deduction  not  preceded  by  induction  is  building  castles 
in  the  air  of  reason  —  making  theories  without  a  basis 
of  fact.  When  a  law  is  discovered  through  induction, 
the  mind  feels  a  need  of  explaining  its  existence  and 
derivation.  In  such  a  case,  the  deductive  process  is 
adopted,  through  which  one  can  come  upon  principles 
already  known.  One  can  conceive  elements  essentially, 
or  conditions  organically,  united  and  discover  the 
method  of  their  combination  which  produces  the  effect 
or  constant  fact,  that  is,  the  derivative  law.  It  is  not 
true  that  the  universal,  from  which  the  deduction  starts, 
is  furnished  with  the  character  of  necessity  and  is  re- 
ducible to  an  abbreviated  formula  of  many  particulars, 
as  Stuart  Mill  states  in  his  "Logic."  The  universal  of 
this  philosopher  is  a  form  distinct  from  the  particular, 


116  LAW  AND  LOGICAL  METHODS 

but  it  is  not  a  true  and  full  universal,  because  it  lies  in 
the  sum  of  qualities  accidentally  common  to  several 
things.  It  is  discovered  by  the  abstraction  and  com- 
parison of  singular  data;  it  is  of  value  only  for  them 
and  not  for  others,  and  is  only  shown  by  them.  The 
philosophers  call  such  a  universal,  which  has  not  the 
character  of  necessity  and  will  not  go  beyond  the  confines 
of  representation  (differing  from  a  concept),  an  imagina- 
tion or  common  notion.  Representation  is  accidental, 
particular,  various,  and  objective;  a  concept  is  necessary, 
universal,  constant,  subjective,  in  that  it  expresses  the 
essence  of  things,  and  is  the  product  of  a  function  higher 
than  representation,  that  is,  of  thought.  From  thought 
alone  can  necessity  and  universality  be  derived  which 
experience  does  not  give  us;  from  thought  alone  can 
arise  the  generalization  by  which  the  true  universal  is 
formed  which  is  the  essential  unity  of  all  possible  objects 
in  all  times  and  places.  A  concept  is  the  true  and  full 
universal,  a  principle  of  deduction,  and  comprehends 
all  the  necessary  notes  or  conditions  of  the  existence  of 
things,  and  is  one  with  their  effective  cause.  It  is  the 
middle  term  which  completes  the  syllogism  (teaches  Aris- 
totle), exercising  the  same  office  as  the  cause  in  nature, 
and  therefore  shows  the  particular  cases  according  to 
their  power.  The  true  universal  is  shown  only  by  the 
reciprocal  interpenetration  of  those  necessary  elements 
and  conditions,  from  which  comes  organic  unity.  The 
method  of  concomitant  variation  shows  us  that  the  tide 
is  a  lunar  phenomenon  because  the  changes  of  the  sea 
respond  in  equal  measure  to  those  of  the  moon,  but  does 
not  show  the  reason  of  such  inductive  law,  which 
ceases  to  be  empirical  when  it  becomes  a  means  for 
the  deduction  of  the  resulting  necessity  of  the  principle 
of  the  attraction  of  the  earth  and  the  moon.  History 
teaches  us  that  the  results  of  activity  of  the  slave  are 


PHYSIOLOGICAL  AND  HISTORICAL       117 

poor  in  relation  to  the  better  labor  of  the  freeman. 
When  this  generality  is  formed,  it  is  connected  with  the 
notion  of  the  principal  motives  of  work,  which  are  fear 
and  hope.  It  is  evident  that  the  mind,  though  it  hardly 
completes  the  thought,  sees  the  necessity  in  the  above 
phenomenon.  One  can  by  means  of  induction  form  a 
conception  of  the  influence  of  despotism,  but  only  deduc- 
tion can  explain  its  causes,  starting  out  with  the  valuation 
of  the  love  of  power  and  other  motives.  Allowing  the 
concept  of  a  person  or  entity  which  has  a  sense  of  itself, 
consciousness,  and  freedom  in  a  proper  organism,  we 
must  infer  that  it  has  a  natural  right  to  physical  and  moral 
life.  Proceeding  on  the  same  principle,  we  find  as  another 
logical  consequence  respect  for  property,  because  it  is 
the  projection  of  the  person  or  the  freedom  of  man  ap- 
plied to  things. 

§  33.  Law  is  Physiological  and  Historical.  From 
what  has  been  said,  it  is  clear  that  science  in  general, 
and  the  juristic,  political,  and  social  sciences  in  partic- 
ular, are  not  limited  to  the  illustration  of  what  exists, 
but  should  extend  to  depicting  what  should  exist. 
Phenomenon  is  only  what  is  actual ;  law  expresses  what 
should  be,  if  it  is  obtained  through  deduction  from 
a  complete  universal.  Whatever  is  has  its  rational 
and  scientific  base  on  what  should  be ;  the  real  is  founded 
on  the  ideal  and  the  certain  on  the  true.  Change,  there- 
fore, has  its  origin  in  an  immutable  type  and  history 
springs  from  an  eternal  idea.  Vico  emphasized  this  con- 
ception when  he  spoke  of  an  ideal  eternal  history,  and 
of  an  eternal  law  that  runs  through  all  time,  and  of  a 
constant  perpetual  succession  of  civil  affairs.  There  is 
in  the  course  of  social  and  national  life  a  final,  necessary, 
ideal  principle  which  is  always  the  same  in  the  definite 
variety  of  forms  and  change  of  events.  This  principle 
is  the  idea  of  man  or  of  common  human  nature,  which 


118  LAW  AND  LOGICAL  METHODS 

acquires  knowledge  of  its  own  unity  through  a  gradual 
development  and  continual  movement,  and  uses  it  to 
conquer  multiplicite  and  discrepant  special  characteristics. 
If  these  fail,  human  nature  would  no  longer  be  able  to 
develop  and  progress,  since  it  would  have  no  restraints 
to  overcome.  There  is  no  development,  progress,  or 
evolution,  where  no  defect  is  met  or  where  there  is  no 
imperfection  to  conquer.  From  this,  it  is  clear  that  we 
must  lay  aside  the  historico-physiological  method  and  the 
purely  rational  and  abstract  deductive  method.  The  first 
is  repugnant  to  the  conception  of  a  science,  which  seeks 
and  determines  the  necessary  and  universal ;  the  second 
is  formal  and  does  not  include  the  real.  The  historico- 
physiological  method  finds  only  the  fact,  the  certain, 
the  authority  in  law,  and  is  adapted  to  illustrate  the 
"mens"andnot  the"ratiolegis."  The  abstract  deductive 
method  considers  only  a  part  of  the  true  in  law,  and  does 
not  go  beyond  the  bounds  of  pure  reason,  which  is  always 
foreign  to  the  very  life  of  the  law  and  the  rich  and  real 
variety  of  the  certain.  It  is  based  on  the  simplest 
elements  of  human  nature,  which  it  considers  in  the 
abstract,  disregarding  all  difference  of  clime,  race,  nation- 
ality, heredity,  and  time,  considering  them  causes  of 
social  phenomena  as  determined  and  sure  as  the  factors 
and  laws  of  mathematics.  Proceeding  under  this 
method,  human  nature  would  appear  as  a  complex  of 
properties  always  equal  and  quiescent  and  would  be 
placed  outside  of  history  and  life  —  which  is  absurd. 
Law  would  no  longer  be  a  human  idea  if  determined 
under  either  of  these  methods.  Law  should  be  the  object 
of  that  science  which  is,  Vico  says,  history  and  philosophy 
at  the  same  time.  As  philosophy,  it  sees  a  well-developed 
series  of  reasons,  and  as  history  it  is  the  perpetual 
sequence  of  human  acts  in  conformity  with  these  rea- 
sons, since  a  cause  produces  its  own  result. 


ARYAN  AND  SEMITIC  RACES  119 

CHAPTER    III 
THE  INDUCTIVE  IDEA  OF  LAW 

THE  STUDY  OF  THE  ETHICO-JURISTIC  CONSCIOUSNESS  OF 
VARIOUS  PEOPLES. —  THE  CONTRIBUTION  OF  THE  ARYAN  AND 
SEMITIC  RACES  TO  THE  HISTORY  OF  CIVILIZATION.  — THE  IDEA 
OF  LAW  AS  THE  MEASURE  OF  THE  ARYAN  RACE.  —  MEASURE  BASED 
ON  THE  PHYSICAL  ORDER,  ON  POSITIVE  LAW,  AND  REASON. 

§  34.  The  A  ryan  and  Semitic  Races  are  the  most  Important. 
The  inductive  process  of  the  philosophy  of  law  should 
begin  with  the  study  of  the  various  ethico-juristic  con- 
sciousness of  peoples.  Two  races  are  the  principal  makers 
of  the  web  of  history,  the  Semitic  and  the  Aryan.  China 
can  be  called  a  world  apart.  Egypt,  while  neither  Sem- 
itic nor  Aryan,  plays  a  considerable  part  in  the  life  of  the 
human  race,  Babylon  is  not  purely  Semitic,  the  Tartar 
races  act  as  natural  forces  of  a  destructive  nature,  but 
the  value  of  the  contribution  of  these  nations  to  the  prog- 
ress of  civilization  is  not  comparable  with  that  of  the 
above  two  races.  There  is  nothing  of  such  grandeur, 
writes  Renan,  to  be  found  in  their  history  that  it  can  be 
compared  to  the  invention  of  writing,  to  the  mission  of 
Moses,  to  the  conquests  of  Cyrus  and  Alexander,  and  to 
Greek  philosophy. 

§  35.  Difference  between  the  Semitic  and  Aryan  Races. 
Renan  gives  a  true  picture  of  culminating  differences  of 
the  two  races  in  his  work  "De  la  Part  des  Peuples  Semit- 
iques  dans  1'Histoire  de  la  Civilisation."  First  of  all, 
the  Indo-European  peoples  have  not  the  eloquence  of 
the  Hebrew  prophets,  the  Koran,  or  Psalms,  but  they 
possess  epics  and  tragedies  that  the  Semites  lack.  Their 
genius  is  not  essentially  philosophical,  because  it  only 


120  INDUCTIVE  IDEA  OF  LAW 

reproduces  Greek  thought  with  Arab  commentaries. 
Science  is  declared  useless  in  the  Book  of  Job  and 
Ecclesiastes.  In  invention  and  art,  the  Phoenicians 
were  the  first  to  teach  writing,  the  elements  of  industry 
and  manufacture,  and  to  give  themselves  over  to  trade, 
afterwards  developed  in  the  Middle  Ages  by  the  Arabs 
and  Hebrews.  Comparative  mythology  shows  that  the 
Aryan  peoples  at  first  professed  a  worship  of  natural  forces, 
later  transformed  by  speculative  thought  into  a  kind 
of  pantheism.  On  the  other  hand,  the  Semitic  religions 
have  an  absolute  dogmatic  and  monotheistic  character. 
The  Semites  have  the  great  religious  mission  in  history: 
Judaism,  Christianity,  and  Islamism  are  their  creations. 
The  Aryan  race  (with  the  exception  of  India  and  Persia) 
received  Semitic  beliefs,  although  its  ethico-religious 
sentiment  was  more  delicate  and  profound  than  that  of 
the  Semites.  Semitic  morality  is  high  and  pure,  if  it 
may  be  judged  from  the  Mosaic  laws,  the  sentences  of 
prophets,  and  the  Old  Testament.  It  is  based  on  the 
severe,  narrow,  and  egostic  mind  of  the  people  in  which 
it  is  born.  The  Semites  lack  the  great  nobility,  the  ethi- 
cal sense,  and  tenderness  of  affection  that  confer  on 
Aryan  morals  their  distinct,  admirable  quality. 

§  36.  The  Aryan  is  a  Juridical  Race.  The  Aryan 
race  has  always  had  a  true  conception  of  law  and 
political  life.  The  greatest  juridical  monuments  of 
antiquity,  the  Indian  books,  the  Roman  law,  and  the 
Germanic  laws  belong  to  this  race,  which  tends  to  recon- 
cile the  authority  of  the  State  with  the  freedom  of  the 
individual.  Among  Aryan  peoples,  there  has  never 
arisen  that  all-controlling  despotism  which  blots  out  man, 
as  in  Egypt,  Babylon,  China,  among  the  Mussulmans 
and  the  Tartar  tribes  —  or  if  it  has  appeared  it  has  not 
been  of  long  duration.  The  Semitic  Orient  is  in  constant 
upheaval  between  the  anarchy  of  the  Arab  nomads,  a 


THE  ARYAN  A  JURIDICAL  RACE          121 

continuous  and  bloody  despotism,  and  theocracy.  Solo- 
mon, the  wisest  of  rulers,  was  as  cruel  as  a  sultan;  the 
prophets  struggled  against  the  kings  in  the  name  and 
interest  of  theocracy.  Individualism  had  great  weight 
among  the  Semites,  who  did  not  succeed  in  making  a  dur- 
able State.  In  fact,  the  history  of  the  people  of  Israel  is 
a  series  of  constant  revolutions  which  hindered  politi- 
cal and  civil  stability.  The  Semites  were  inclined  to  live 
in  small  communities  and  out  of  their  own  country, 
preserving,  nevertheless,  their  original  character  and 
a  keen  consciousness  of  their  own  nationality.  The 
Phcenicians  (except  in  a  few  colonies),  the  Hebrews  and 
Arabs  lived  and  still  live  in  this  way.  It  has  been  well 
said  that  the  Semite  has  an  adopted,  accidental,  and  sec- 
ondary country,  which  confers  on  him  rights  and  benefits, 
and  a  country  by  nature,  constant  and  fundamental,  which 
offers  him  aid  and  a  refuge  among  all  nations.  The  Semit- 
ico-Hebraic  faith,  Kerbaker  adds,  harmonizes  with 
their  political  ideas  in  opposition  to  those  of  the  Aryans, 
who  have  religions  that  make  man  feel  all  his  dependence 
on  external  circumstances,  and  therefore  urge  him  to 
conform  his  conduct  to  a  conception  of  natural  necessity. 
In  nature  there  are  inequalities  against  which  it  is  vain 
to  struggle.  The  Hebrews,  on  the  other  hand,  have  three 
conceptions,  one  of  a  personal  and  omnipotent  God 
who  gives  the  laws  according  to  His  will,  another  of 
a  social  law  realizing  the  kingdom  of  God  on  earth,  and 
the  third  of  human  cosmopolitanism  (notwithstanding 
that  the  Hebraic  hegemony  was  dominant).  These  three 
conceptions  contain  the  belief  in  the  abstract  freedom  of 
man,  dependent  only  upon  a  divine,  inexorable  will  and 
not  on  the  intrinsic  necessity  of  entities,  and  a  belief  in  the 
abstract  equality  and  concord  of  nations.  In  general,  the 
political  life  of  the  Semites  did  not  develop  beyond 
patriarchal  form;  it  is  simple  and  not  complicated,  differ- 


122  INDUCTIVE  IDEA  OF  LAW 

ing  largely,  therefore,  from  the  Aryan  political  life,  which 
from  the  very  beginning  proceeded  with  its  famous 
government  composed  of  a  king,  a  senate,  and  a  general 
assembly  through  discussion.  It  cannot  be  doubted, 
says  Bagehot  in  "Physics  and  Politics,"  that  the  passage 
from  slavery  and  immobility  to  a  free  state  is  due  to  the 
regime  that  is  based  upon  the  discussion  of  principles  and 
the  questions  of  common  interest,  because  discussion 
makes  the  mind  acute,  increases  originality  of  debate, 
and  presupposes  tolerance.  But  Bagehot,  however, 
admonishes  us  not  to  believe  absolutely  in  the  political 
primacy  of  our  race,  since  there  are  in  the  Orient  the 
Bengalese  of  Aryan  race  who  are  the  most  servile 
people  in  the  world,  and  among  the  Semites  the  citizens 
of  Tyre  and  Carthage,  who  were  capable  of  enjoying 
freedom. 

§  37.  The  Aryan  Language  shows  the  Juristic  Ten- 
dency. From  an  examination  of  the  various  ethico-ju- 
ristic  manifestations  of  the  consciousness  of  nations,  we 
find  that  law  has  always  been  conceived  as  a  principle  of 
direction  towards  a  moral  object,  and  a  rule,  measure, 
harmony,  or  proportion.  In  the  Aryan  mind,  this  notion 
is  very  well  marked  and  forms  the  main  base  of  civil 
life.  Philology,  since  Vice's  time,  has  had  the  same  rela- 
tion in  respect  to  philosophy  that  paleontology  has 
towards  biology,  and  language  containing  a  spontaneous 
knowledge  shows  the  truth  of  this.  It  teaches  first 
that  the  full  development  of  philosophy,  of  poetry,  and 
of  the  State  among  the  Aryan  peoples  is  intimately  con- 
nected with  the  fact  of  the  independence  of  the  verb 
from  the  inflective  endings  for  the  nouns  in  the  languages 
spoken  by  those  peoples.  We  may  note  that  the  verb  is 
the  most  abstract  part  of  speech  and  therefore  indicates 
the  power  of  universalization,  a  power  necessary  to  phil- 
osophy, poetry,  and  the  State.  The  Greek  word 


VEDIC  LAW  IS  HARMONY  123 

the  Italian  "diritto,"  the  French  "droit,"  the  German 
"recht,"  the  English  "right,"  the  Slavic  "pravo,"  all 
express  the  principle  of  direction,  or  measure.  Ac- 
cording to  the  modern  philologists  the  Latin  "jus"  conies 
from  the  Sanscrit  root  "ju,"  which  means  to  bind; 
whence  "jus"  is  what  binds  or  harmonizes.  Thus  are 
explained  the  other  words  in  which  the  same  root  is  seen 
as  "jungere,"  "jugum,"  "conjugium,"  etc.  The  word 
siKcuov  has  for  its  root  "dik,"  common  to  both  Greek  and 
Latin,  and  means  to  indicate,  to  point  out,  to  direct. 
In  Latin,  the  same  root  is  found  in  the  words  "dicere," 
"digitus,"  "indicare,"  and  in  combination  with  "jus" 
forms  "judicare,"  to  show  the  right. 

§  38.  Vedic  Law  is  Harmony.  From  the  Vedic 
hymns,  it  is  seen  that  the  Indian  Aryan  distin- 
guished three  worlds  and  three  families  of  God,  that 
which  remained  in  the  celestial  grade,  the  second  of 
the  immovable  earth  and  its  depths,  and  the  third  that 
lay  in  the  world  of  air,  in  which  plants  and  animals 
live,  and  men  work.  In  the  Brahmans,  in  the  Sutra, 
wherever  philosophical  meditations  are  enjoyed,  the 
Vedic  trinity  of  worlds  does  not  disappear  but  changes, 
as  Merlo  in  "Armonie  nelleAntiche  Dottrine  Antropolo- 
giche  e  Morali  dell'  India  e  della  Grecia"  explains, 
into  three  abstractions,  into  the  "tamas,"  or  torpid 
obscurity,  the  "ragias,"  or  headlong  motion,  and  into 
the  "settva,"  complete  and  quiet  happiness.  These  are 
the  three  primal  qualities  to  which  the  earth,  the 
air,  and  the  heavens  correspond.  In  man,  there  is  a 
triplicity  of  sense,  will,  and  intellect,  and  a  celestial  part 
obscured  by  the  vapors  from  the  earthy  part.  The 
triplicity  is  observed  also  in  the  Civil  State,  in  its  division 
into  three  castes,  because,  in  ancient  India  the  fourth  class 
of  Shubra  represents  what  is  elsewhere  the  slave  class, 
and  is  the  link  between  man  and  brute.  The  Sudri 


124  INDUCTIVE  IDEA  OF  LAW 

have  but  one  virtue,  to  serve  with  absolute  devotion 
the  three  other  castes.  In  the  Brahmans  meditation  pre- 
vailed, in  the  Kshatriya,  bravery,  and  in  the  Vaishya,  tem- 
perance. It  is  enjoined  upon  everyone  to  keep  his  proper 
place  in  the  caste  without  a  desire  to  change  it.  In  conse- 
quence the  Aryan  Indian  cannot  fail  to  consider  justice 
as  a  harmony  of  all  these  elements  and  castes.  The  sim- 
ilarity between  the  Indian  and  Greek  conception  of  jus- 
tice is  remarkable.  According  to  the  latter,  justice  is 
always  harmony.  Plato  defined  it  as  the  accord  of  the 
three  powers  of  reason,  courage,  and  sense,  of  the  three 
virtues,  wisdom,  bravery,  and  moderation,  and  of  three 
classes  of  philosophers,  warriors,  and  artisans. 

§  39.  The  Mute  Age.  Ancestor  Worship.  The  Ary- 
an conception  of  law  as  measure  or  accord  passes 
through  various  phases,  because  man  is  sense,  imagina- 
tion, and  reason,  and  because  his  history  must  pass 
through  the  mute,  heroic,  and  human  stages.  Vico  out- 
lined at  great  length  the  characteristics  of  such  ages, 
and  his  words  are  confirmed  by  the  analyses  of  modern 
science.  In  the  mute  age,  human  nature  was  proud, 
haughty,  entirely  dominated  by  sense  and  the  superior 
world,  whose  forces'  it  called  divine.  It  was  overcome  by 
fear  and  fright  before  those  gods  that  it  itself  imagined. 
Law  in  such  an  age  was  essentially  divine,  hidden  in  ora- 
cles or  commands  of  the  gods,  who  dominated  all,  man  and 
things.  The  oracle  was  the  principle,  or  the  measure  of 
conduct,  and  jurisprudence  a  divine  wisdom,  a  science 
of  divine  words  or  of  the  comprehension  of  the  mysteries 
of  divination,  a  science  of  auspices.  There  was  a  divine 
mental  language  for  mute  religious  acts  and  divine  cere- 
monies, in  which  lay  the  just.  The  first  customs  are 
redolent  with  religion  and  piety.  The  governments  were 
of  a  theocratic  character,  because  men  believed  that  the 
gods  commanded  everything.  Justice  lay  in  repay- 


MODERN  RESEARCHES  125 

ing  the  gods  for  sudden  crimes.  It  is  "implorare 
deorum  fidem,"  which  means  "deos  obtestari."  After 
such  beseechings,  that  is,  after  the  accusations  and 
defenses  (which  form  the  first  orations  in  the  world),  one 
comes  to  the  act  of  execrating  the  culprit,  of  consecrat- 
ing him  to  the  Furies,  and  finally  of  killing  him. 

§  40.  Modern  Researches  in  Ancient  Law.  The  most 
profound  studies  of  the  moderns  on  the  laws  of  India 
do  not  reach  conclusions  really  different  from  the 
ideas  of  Vico.  It  is  even  proved  by  Max  Miiller,  and 
by  Sumner  Maine  in  his  "Dissertations  on  Early  Law 
and  Custom,"  that,  according  to  the  juristico-hierarch- 
ical  schools  of  India  (a  kind  of  spiritual  family),  science 
is  found  in  the  sacred  and  inspired  literature  from 
Vishnu  and  Vasishtha  to  Apastamba  and  Gautama,  and 
from  these  to  Manu,  and  from  Manu  to  Nerada,  and 
contained  therein  is  what  man  should  know  and  what 
he  should  do.  Law  enters  as  a  second  term  in  the  division. 
The  juristic  books  are  principally  treatises  on  religious 
observances  and  sacerdotal  duties,  in  which  the  princi- 
ples of  conduct  imposed  upon  the  Indian  of  the  three 
higher  classes  are  found — to  live  as  a  student  of  the  sacred 
works  taught  by  Brahmans  in  his  youth,  as  head  of  a  fam- 
ily in  his  mature  years,  and  as  an  ascetic  and  hermit  in 
his  old  age.  In  these  precepts  stands  the  law  entirely 
based  on  religious  beliefs  and  especially  on  those 
regarding  the  destiny  of  man  after  death;  that  is,  the 
heavenly  rewards  and  infernal  punishments,  the  trans- 
migration of  souls  and  ancestor-worship.  The  principle 
developed  in  these  books  is  that  the  destiny  of  man  after 
death  is  the  consequence  of  his  acts.  It  depends  on  the 
man  whether  he  becomes  in  the  future  life  a  plant, 
a  reptile,  a  Brahman,  or  a  demigod.  The  reward  belongs 
to  the  other  life;  in  this  life  lies  the  penance.  But  if 
the  penance  is  not  fulfilled,  the  king,  aided  by  his 


126  INDUCTIVE  IDEA  OF  LAW 

priestly  councilors,  will  threaten  bodily  punishment. 
The  ritual  of  ancestor-worship,  so  closely  connected  with 
the  right  of  inheritance,  is  found  in  all  these  juristic 
books.  In  our  day  this  cult  is  explained  in  a  psychological 
manner  through  the  phenomenon  of  sleep  and  the 
primitive  imagination.  For  a  long  time,  writes  Lubbock, 
in  "The  Origin  of  Civilization  and  the  Primitive  Condi- 
tion of  Man,"  man  did  not  understand  death,  and  con- 
fused it  with  sleep.  The  savage  knew  that  during  sleep 
the  spirit  lived  although  the  body  seemed  dead,  and  it 
was  natural  that  he  should  try  to  arouse  the  dead  and 
placed  food  near  the  corpses.  The  prayers  addressed  to 
those  who  are  no  more,  represent  a  logical  deduction  from 
such  a  conception,  since  the  dead  living  in  another  world 
can  exercise  a  considerable  power  over  human  affairs. 
Spencer  in  his  "Principles  of  Sociology,"  in  conformity 
with  the  above  theory,  classified  the  different  societies 
according  to  their  belief  in  spirits.  The  principle  of  the 
psychological  theory  did  not  escape  the  mind  of  Vico. 
He  taught  that  posterity,  who  bury  the  dead  of  their 
ancestors  according  to  the  order  of  their  mortality, 
were  persuaded  that  the  soul  was  not  the  body  but  an 
image  of  it,  its  simulacrum  and  shadow.  This  belief  begins 
and  is  developed  when  posterity  deify  the  ancestors  of  the 
race.  It  is  not  necessary  to  insist  upon  the  agreement  of 
recent  studies  with  Vice's  thought  about  ceremony. 
Spencer  has  gone  so  far  on  this  subject  as  to  hold  that 
the  customs  expressing  obedience  to  an  invisible  or 
visible  sovereign  precede  the  religious  and  civil 
obligations  prescribed  by  it.  Before  the  law  ap- 
pears, there  are  religious  duties.  There  must  be,  he 
says,  subordination  to  a  power  which  establishes  this 
and  imposes  that  and  therefore  the  rule  of  the 
ceremonial  is  primitive  and  precedes  religious  and  civil 
government. 


THE  HEROIC  AGE  127 

§  41.  The  Heroic  Age.  In  the  heroic  age,  man  no 
longer  feels  himself  a  slave  of  his  senses  and  the  ex- 
ternal world,  but  begins  to  have  knowledge  of  him- 
self and  his  position,  although  imagination  prevails. 
Man  really,  writes  Vico,  is  only  body,  breath,  and  mind. 
The  breath  or  imagination  is  placed  in  the  midst  of 
the  body  and  the  mind.  The  spirit  or  imagination  is 
nurtured  by  phantastic  generations,  by  poetical  univer- 
sals,  by  formulas  of  words,  as  the  mind  has  within  itself 
intelligible  universals.  Heroic  nature  is  believed  by  these 
heroes  to  be  of  divine  origin  and  themselves  to  be  children 
of  Jupiter.  Being  born  under  his  auspices,  they  boast  of 
their  natural  nobility  over  those  who,  for  safety  from  the 
ruin  produced  by  infamous  bestial  communion,  sought 
their  asylum;  whom,  destitute  and  godless,  they  held  as 
beasts.  All  the  civil  advantages,  therefore,  are  contained 
within  the  reigning  order  of  heroes,  and  to  the  plebeians, 
thought  to  be  of  bestial  origin,  is  given  only  the  use  of 
life  and  natural  fruition.  The  heroes  had  choleric  and 
caviling  customs,  that  is,  a  strong  sense  of  personality, 
which  they  made  good  by  force.  Their  law  is  that  of 
Achilles ;  the  measure,  in  that  age,  is  reason  estimated  by 
fortune ;  it  is  force  not  bestial  but  purified  by  religion  and 
animated  by  imagination.  The  rulers  are  the  nobles,  that 
is,  the  strongest,  who  work  always  to  keep  control  and  to 
hold  their  boundaries  to  prevent  the  communion  of  the 
outlaws.  Wisdom  is  contained  in  solemn  formulas  and 
jurisprudence  is  bounded  with  certain  words  of  its  own, 
like  the  wisdom  of  Ulysses.  In  the  heroes  lay  all  the  au- 
thority that  formerly  was  part  of  faith  and  now  is  part 
or  form  of  the  solemn  formulas  of  the  laws  and  action  in 
respect  to  judgments. 

§  42.  The  Human  Age.  The  human  age  succeeded 
the  heroic,  when  our  nature  became  modest,  benign, 
and  reasonable,  and  custom  became  developed  reason. 


128  INDUCTIVE  IDEA  OF  LAW 

Jurisprudence  was  founded  on  natural  equity,  of  which 
the  free,  generous,  and  magnanimous  masses  were 
capable,  and  it  looked  to  the  truth  of  facts  and  ful- 
filled benignly  the  reasons  of  the  laws  as  demanded 
by  justice.  The  truth  of  facts,  good  faith  (the 
product  of  humanity),  customs  suitable  to  free  re- 
publics and  generous  monarchies  prevailed  in  the 
judgments.  All  are  equal  before  the  law  in  human 
governments  because  of  the  equality  of  intelligent 
nature.  Authority  is  no  longer  the  same  as  mysterious 
and  secret  counsel,  chance,  or  hereditary  nobility,  but 
is  one  with  reason:  "Auctoritas  ex  ratione." 

§  43.  The  Family  was  the  first  Unit  of  the  Law.  Ad- 
mitting the  laws  of  the  three  ages,  it  can  be  seen  that 
in  the  first  the  moral  and  juristic  order  was  confused 
with  the  physical.  Measure  and  harmony  are  found  in 
nature  and  therefore  ignorance  and  fatality  cannot  fail  to 
enter  into  formation  of  the  ethical  concept.  The  act 
of  man  through  this  confusion  is  valued  without  consider- 
ation of  the  intention,  and  the  fault  becomes  original  and 
hereditary.  Ate,  the  Homeric  Nemesis,  pursues  whoso- 
ever wilfully  or  unconsciously  disturbs  the  harmony  of 
nature.  The  disturbance  in  every  case  demands  expia- 
tion and  the  penalty  falls  upon  the  author  and  his 
descendants,  because  the  basis  of  primitive  law  was  the 
family  community  and  not  the  individual.  The  confusion 
disappeared  in  Greece,  the  land  of  art,  through  the  lyrics 
and  tragedies,  as  Florentinus  points  out  in  "Ideale  del 
Mondo  Greco."  Theognis  demands  that  Jove  punish 
the  descendants,  and  Bias  ironically  likens  the  gods  to 
doctors  who  give  medicine  to  the  children  of  the  sick. 
^Eschylus  shows  in  "Prometheus,"  the  stealer  of  fire  who 
was  bound  to  a  rock  for  the  eagles,  the  first  act  of  personal 
punishment,  but  Prometheus  is  a  demigod  and  not  a 
true  man.  In  the  "Orestiad"  there  is  the  idea  that  a  guilty 


THE  SEVEN  SAGES  129 

man  can  redeem  himself.  Orestes  is  acquitted  by  a  tie 
vote  in  the  celestial  Areopagus  on  the  defense  of  the  two 
young  divinities,  Apollo  and  Minerva,  who,  pleading  in 
favor  of  a  new  law,  are  accused  of  offending  the 
ancient  laws  which  confuse  the  two  orders  of 
heredity  and  fault.  The  new  law  is  based  on  in- 
tention and  on  ethics.  Orestes,  however,  does  not 
take  part  in  the  judgment  and  knows  nothing  of 
the  contest  on  Olympus  about  his  fate.  Sophocles 
alone,  in  CEdipus,  represents  a  man  guilty  without 
knowing  it  of  parricide  and  incest,  who  is  not  punished 
because  of  the  lack  of  guilty  intent. 

§44.  The  Seven  Sages  and  the  Early  Sophists.  In  the 
human  age,  the  measure,  of  which  the  Aryans  made 
law  consist,  was  no  longer  identified  with  the  physical 
order,  but  rather  with  civil  and  positive  law.  The 
axioms  of  the  Seven  Sages,  the  first  philosophical  reflec- 
tions, regard  practical  life  and  rules  of  social  conduct, 
because  in  the  Greek  period  the  source  of  ethical  notions 
and  speculative  activity  itself  was  found  in  civil  reality. 
The  Seven  Sages  were  not  philosophers,  but  men  of  great 
experience  living  at  the  time  of  the  struggle  of  the 
"demos"  against  the  oligarchs.  All  their  axioms  make 
for  clearing  and  reinforcing  the  Hellenic  concept,  that 
the  State  should  realize  harmony.  Solon,  for  example, 
teaches  that  injustice  disturbs  this  harmony.  Bias 
teaches  that  obedience  to  the  law  is  the  principle  of 
agreement.  Anacharsis  says  that  the  harmony  of  the 
whole  exists  where  the  members  are  equal,  and  where 
virtue  occupies  the  higher  position  and  vice  the  lower. 
Archelaos  tries  to  show  that  animals  and  men  arose 
from  the  dust,  and  that  the  laws  have  their  origin  within 
the  State  after  the  separation  of  men  from  beasts. 
He  adds,  agreeing  with  the  Ionic  school,  that  the  just 
is  the  measure  of  harmony  in  the  State  and  is  not 


130  INDUCTIVE  IDEA  OF  LAW 

decreed  by  nature,  but  by  the  laws  of  the  city.  The 
Sophists,  says  Chiappelli,  in  his  book  "Sulle  Teorie 
Sociali  dei  Sofisti  Greci,"  found  themselves  confronted 
with  the  idea  of  nature  as  portrayed  by  precedent  thought, 
and  were  forced  from  the  first  to  consider  it  as  the  basis 
of  moral  life.  Hippias  did  not  recognize  the  identifi- 
cation of  the  just  with  the  legal,  but  believed  that  the 
laws  were  the  variable  and  contradictory  effect  of  agree- 
ments between  men,  and  that  the  just,  which  could  be 
found  in  the  contrast  of  the  principal  branches  of  the  legis- 
lation of  different  peoples,  lay  in  the  unwritten  law  of 
nature  and  in  divine  action.  As  the  first  movement  of 
Sophism  shows  the  applications  of  physical  concepts  to 
ethics,  so  the  second  shows  the  separation  of  moral 
thought  from  nature.  Pythagoras  observed  that  nature 
has  neither  constancy  nor  universality,  but  continu- 
ously changes,  and  man  only  knows  it  to  the  extent  that 
sensation,  which  is  variable,  gives  witness  to  it.  What  is 
honest  and  just  is  such  because  it  is  so  held  by  the 
city,  that  is,  by  positive  law.  As  things  honest  and 
just  are  true  of  every  city,  so  they  are  made  such  by 
cities.  The  principle  of  Hippias  that  nature  and  not  law 
is  the  principle  of  life  served  Callicles  in  his  state- 
ment that  the  just  is  the  will  of  the  stronger,  because 
the  condition  of  nature  is  not  equality  but  prevalence 
of  strength.  And  so  in  nature,  says  Callicles,  whoever 
has  the  strength  is  right.  If  the  just  lies  in  the  law  and 
State,  as  Pythagoras  teaches,  and  the  laws  and  the  State 
are  the  product  of  force  and  caprice,  Thrasimachus  is 
not  illogical  in  concluding  that  justice  should  be  placed 
in  prevalence  of  the  strong  over  the  weak,  and  that  law 
is  reducible  to  the  interest  of  the  strong.  Thus,  by 
two  opposite  ways,  Sophism  comes  to  the  recognition 
of  the  individual  subject,  more  sensate  than  intelligent, 
as  the  measure  of  everything. 


SOCRATIC  PHILOSOPHY  131 

§  45.  Socratic  Philosophy  and  Aristotle.  At  last, 
the  measure  was  not  sought  in  the  positive  law  but 
in  a  rational  principle.  Pythagoras  had  already  taught 
that  justice  is  harmony,  quadrate  and  apart,  always 
the  same,  counter-exchangeable;  and  that  harmony 
is  the  state  of  the  cosmos.  The  consequence  of  this, 
not  shown  by  him,  is  that  the  just  cannot  originally 
lie  in  the  laws  of  the  State.  Socratic  truth  and  measure 
are  not  sought  in  nature  and  out  of  the  sphere  of  knowl- 
edge, but  in  knowledge  and  the  concepts.  The  prin- 
ciple of  Socratic  ethics  is  the  identification  of  virtue  with 
knowledge  and  of  evil  with  ignorance.  Whoever  knows 
the  good  cannot  fail  to  pursue  it ;  whoever  does  the  evil 
is  ignorant  of  the  good.  In  this  knowledge  is  found 
happiness,  just  as  virtue  is  allied  with  knowledge.  On 
this  side,  Socrates  agrees  with  Ionic  philosophy  and 
Pythagoras.  On  the  other  hand,  he  approaches  the  doc- 
trines of  Hippias  in  admitting  unwritten  laws  given  by 
the  gods  as  the  basis  of  the  written  laws.  This  distinc- 
tion of  laws  made  by  Socrates  should,  however,  always 
be  placed  in  relation  to  his  principle  of  knowledge. 
Plato  thinks  justice  is  a  higher  idea  than  law,  consisting 
as  it  does  in  wisdom,  and  in  the  harmony  of  the  three  pow- 
ers, virtues,  and  classes.  Aristotle,  following  Plato,  rises  to 
the  notion  of  justice  independent  of  the  orders  of  the 
State.  In  the  mind  of  the  Stagirite  the  just  is  the 
mean  between  the  two  extremes  of  the  illegal  or  unequal 
and  the  strict  law.  "Summum  jus,  summa  injuria." 
Commutative  justice  follows  an  arithmetical  propor- 
tion, and  is  the  mean  between  giving  and  having,  be- 
tween advantage  and  loss.  Distributive  justice  looks  to 
merit  as  its  object  and  follows  geometrical  proportion. 
The  Stoics  admit  a  law  that  is  the  divine  and  vital 
manifestation  of  the  reason  of  nature.  "  Jus  vero, 
Stoici  dicunt,  esse  natura,"  say  Stobseus  and  Cicero. 


132  INDUCTIVE  IDEA  OF  LAW 

"  Lex  communis  quse  est  recta  ratio  in  omnes  diffusa," 
is  a  sentence  from  Zeno.  Chrysippus,  in  the  beautiful 
fragment  translated  by  Martial,  teaches,  "  Lex  est 
omnium  divinarum  et  humanarum  rerum  regina. 
Oportet  autem  earn  esse  praesidem  et  bonorum  et 
malorum,  et  principem  et  ducem  esse." 

§  46.  Roman  Philosophy.  Among  the  Romans  the 
same  phases  of  the  idea  of  law  were  reproduced,  but 
with  differences  growing  out  of  the  different  national 
'characters.  In  Greece,  the  human  mind  developed, 
and  for  the  first  time  asserted  its  independence  of 
nature  through  art  and  philosophy.  By  art,  man 
reproduces  and  recreates  nature,  expressing  his  ideas 
in  the  most  adequate  and  sensible  forms.  The  free- 
dom of  the  mind,  as  thought  tending  toward  dis- 
tinction, is  shown  even  better  in  the  rapid,  although 
always  gradating  conversion  from  the  mute  to  the 
articulate  that  was  observable  in  Greece.  Distinction 
is  the  basis  of  personality  while  imagination,  the  power 
of  art,  is  always  wavering  and  confused.  It  is  uncertain 
and  forced.  This  conversion  took  place  through  phil- 
osophy, and  has  its  exemplified  formula  in  the  "Know 
thyself  "  of  Socrates.  But  the  Logos  in  Greece  came  to 
be  recognized  as  different  from  imaginative  thought, 
but  not  separate  from  it,  and  did  not  develop  outside  the 
realm  of  art,  the  special  prerogative  of  the  Hellenic 
people.  If  Greece  is  the  world  of  philosophy  and  art, 
Rome  represents  the  world  of  the  will  and  therefore  of 
law,  politics,  and  war.  The  concept  of  measure  was 
clothed  in  Greece  in  all  the  charming  forms  of  beauty, 
in  the  common  thought  and  meditations  of  the  philoso- 
phers; in  Rome  it  became  the  basis  of  the  juristic 
intellectual,  and  political  sciences  and  military  wisdom. 
In  the  Roman  world,  will  on  one  hand  was  born  in  the  high 
organisms  of  the  State,  and  on  the  other  began  to  develop 


ROMAN  PHILOSOPHY  133 

as  individual  law.  With  the  principle  of  will  and  its  sub- 
jective nature,  private  law  could  not  fail  to  arise  and 
develop,  as  we  have  said  above. 1  According  to  Vico,  law 
is  at  first  strict,  iron-bound,  and  rigid,  then  it  is  amplified 
and  grows  supple  and  elastic,  moderated  by  equity.  It 
is  not  gotten  from  the  Twelve  Tables  or  the  Edicts,  but 
rather  from  human  nature  itself,  as  Cicero,  the  follower 
of  the  Academico-Stoical  philosophy,  said,  "  Lex  est 
ratio  summa  insita  in  natura"  ;  that  "Recta  ratio  est 
naturae  congruens,  et  natura  fons  est  legum  et  juris,  stirps 
juris,  tota  causa  universi  juris.  Natura  quidem  jus  est 
quod  non  opinio  genuit  sed  qusedam  innata  vis  inseruit." 
In  the  minds  of  the  ancient  jurisconsults,  the  followers 
of  the  Stoic  law,  it  is  the  effect  of  the  "  naturalis  ratio 
quasi  lex  quaedam  tacita,"  and  consists  in  the  "equum 
bonum  "  in  the  "id  quod  semper  bonum  et  sequum  est," 
in  the  "  ars  boni  et  sequi,"  and  in  a  proportion  of  the 
utilities.  There  is,  according  to  the  Stoics,  a  "ratio" 
that  has  in  itself  a  basis  of  the  common  natural  knowl- 
edge. This  natural  knowledge  contains,  in  the  minds  of 
the  jurisconsults,  the  knowledge  of  the  "  equum  bonum." 
At  the  end  of  the  Republic  the  doctrines  of  Epicurus 
flourished,  who  thought  "  Justum  natura  est  utilitatis 
pactum,"and  those  of  Lucretius  who  said,  "  Magistratus 
partim  docuere  creari  juraque  constituere  ut  vellent 
legibus  uti  .  .  .  Genus  humanum  defessum  .  .  .  sponte  sua 
cecidit  sub  leges  arctaque  jura."  Almost  at  the  same 
time  appeared  the  authors  of  the  empirical  theory  with 
Esidemus  and  the  Sceptics,  all  enemies  of  the  natural 
law.  Sextus  Empiricus  reiterates  that  law  is  the  mutable 
and  variable  product  of  human  license.  The  sensualistic 
doctrines  were  enthusiastically  received  by  the  Latin  poets 
and  writers,  if  not  by  the  jurisconsults  whose  various 
schools  resist  more  or  less  the  influence  of  the  Stoics  and 

lCf.  Intro,  p.  5. 


134  INDUCTIVE  IDEA  OF  LAW 

agree  in  proclaiming  the  existence  of  a  natural  law 
founded  on  the  "naturalis  ratio":  "Omnibus  ratio  jus 
igitur  datum  est  omnibus,"  said  Cicero. 

§  47.  Later  Philosophy.  In  the  modern  and  truly 
human  epoch,  the  principle  of  the  proportion  or 
measure  is  developed  wholly  in  the  light  and  evi- 
dence of  reason.  Ever  since  the  Middle  Ages  the 
beginning  of  this  development  was  apparent  in  the 
works  of  Thomas  Aquinas  and  Dante.  Aquinas  dis- 
tinguished three  kinds  of  law,  —  "  lex  seterna,"  that  is 
in  God,  "lex  humana"  or  positive  law,  and  "lex  natura- 
lis," which  lies  between  one  and  the  other,  in  that  it  is  a 
part  of  the  first  and  the  model  or  type  of  the  second. 
For  him  justice  is  proportion;  "justicia  a  justare." 
Dante  defines  law  explicitly  as,  "Personalis  et  realis 
proportio  hominis  ad  hominem  quse  servata  servat  cor- 
rupta  corrumpit  societatem."  At  the  time  of  the  Renais- 
sance, Bruno  conceived  of  an  ethical  doctrine  resplendent 
with  the  divine  light  of  truth,  which  is  the  very  substance 
of  moral  action  attainable  by  a  temporal  discourse  that  is 
prudence.  Law,  says  Bruno,  should  conform  to  reason 
and  result  in  the  useful.  Reason  is  the  measure,  the 
directive  principle  of  law.  But  the  above  development 
was  fully  realized  by  the  father  of  natural  law.  Grotius 
conceived,  with  absolute  clearness,  of  a  natural  juris- 
prudence, founded  on  reason  and  the  source  of  all  other 
jurisprudence.  According  to  him  natural  law  is  the  sum 
of  the  principles  of  right  reason  and  could  exist  on  the 
hypothesis  of  the  non-existence  of  God.  And  thus  the 
measure  of  goods  or  proportion  of  utilities,  the  constant 
object  of  the  deductive  definition  of  law,  becomes  human 
enough  to  separate  from  the  original  ties  which  bound  it 
to  God  and  tries  to  stand  by  itself. 


BACON'S  MATERIALISM  135 


CHAPTER  IV 

THE  THEORETICAL   PRESUPPOSITIONS  OF 
THE  DEDUCTIVE   IDEA  OF  LAW 

THE  PRINCIPLE  OF  PERSONALITY.  —  THE  ORGANIC  AND  SPIRIT- 
UAL ELEMENTS  OF  THE  PERSON  AND  THEIR  CORRESPONDENCE.  — 
THE  UNFOLDING  OF  MATERIALISM.  —  THE  THEORY  OF  EVOLU- 
TION.—THE  CRITICISM  OF  MECHANICAL  EVOLUTION. 

§  48.  Man  as  an  Organic  Spiritual  Subject.  The 
concept  of  law  as  the  measure  or  proportion  of  benefits 
from  inductive  becomes  deductive  when  based  on  the 
principle  of  personality.  Man  is  a  person,  that  is,  an 
organic  and  spiritual  subject  capable  of  wisely  attaining 
his  own  ends  by  the  election  of  means,  and  of  subjecting 
the  world  to  his  will.  A  person,  as  man,  presupposes  the 
organism  and  spirit.  We  must  now  go  back  to  the  first 
elements  and  even  to  the  original  activity  from  which 
the  person  is  derived.  This  subject  cannot  be  briefly 
treated,  and  we  must  go  into  what  properly  belong  to 
philosophy  in  general. 

§  49.  Bacon's  Materialism.  The  correspondence  often 
shown  between  the  organism  and  the  spirit  is  used 
as  an  argument  in  favor  of  the  materiality  of  the 
latter  by  those  who  agree  with  Bacon  that  the  cause 
is  what  comes  first;  and  the  sequent  fact  by  alter- 
ation, change,  and  suppression  implies  development. 
Since  the  spirit  is  a  fact,  it  follows  when  the  body  is 
given,  and  develops  and  changes  with  it  and  fails  when 
there  is  no  body.  We  can  conclude  (under  the  Baconian 
method)  that  the  spirit  has  the  same  nature  as  the  organ- 
ism, not  being  another  kind  of  substance  beyond  the 


136  DEDUCTIVE  IDEA  OF  LAW 

material,  and  that  it  can  through  the  perception  of  the 
senses  know  the  methods  of  the  generation,  combination, 
and  action  of  beings. 

§  50.  Bacon's  Materialism  is  the  Result  of  Illegitimate 
Deduction.  The  mistake  of  those  who  reason  thus  does 
not  lie  in  their  continuous  appeal  to  experience,  but  in 
exceeding  its  data  in  their  conclusions,  because  strict 
reason  cannot  infer  from  the  before  mentioned  corres- 
pondence that  the  organs  are  not  subject  to  psychical 
phenomena,  but  are  only  conditions  essential  for  the 
appearance  and  explication  of  the  life  of  the  spirit. 
In  such  a  case,  they  would  not  go  beyond  on  the 
sphere  of  experience,  and  spiritualism  would  be  safe. 
It,  however,  suffers  at  the  hands  of  the  modern  be- 
lievers in  the  persistence  and  transformation  of 
force;  because  from  motion  to  heat  there  is  only  a 
movement  of  molecules,  and  there  is  not  that  hetero- 
geneity of  change  that  lies  between  vibration  and  sensa- 
tion. Now,  until  the  series  of  medial  termini  is  shown 
through  which  one  can  see  the  change  from  molecular 
motion  to  sense,  it  will  always  be  right  to  consider 
motion  as  a  condition  and  not  the  cause  of  sensibility,  to 
keep  the  two  things  distinct.  Vibration,  it  is  said,  is  in 
respect  to  sensation  what  the  grain  is  in  respect  to  powder. 
The  grain  is  the  condition  of  the  explosion,  but  its  cause 
lies  in  the  chemical  virtue  of  the  powder.  In  sensation, 
conceived  as  a  complex  phenomenon,  we  must  distinguish 
three  processes,  the  physical,  psycho-physical,  and  psychi- 
cal. The  physical  process  regards  the  action  of  external 
force,  that  is,  of  the  stimuli ;  the  psycho-physical  has  refer- 
ence to  the  structure  and  functions  of  the  organ ;  the  psychi- 
cal is  connected  with  the  simple  and  indefinable  internal 
state  of  the  spirit,  that  is  properly  called  sensation.  Mod- 
ern physicists  and  physiologists  of  great  reputation  agree 
that  the  second  process  is  not  the  reproduction  of  the  first, 


PSYCHOLOGICAL  MATERIALISM          137 

as  the  third  is  not  the  copy  of  the  second.  Sensation  is 
not  the  copy  of  external  objects,  but  is  only  their  symbol 
and  sign.  Helmholtz  says  that  the  knowledge  furnished 
us  by  sensation  about  the  qualities  of  external  objects  is 
no  truer  than  that  which  words  give  to  a  blind  man 
about  color.  This  means  that  the  stimulus  is  more 
occasion  than  cause.  The  materialists  admit  that 
psychic  phenomenon  is  not  a  fact,  distinct  in  substance 
from  physiological  fact,  but  claim  it  constitutes  its  sub- 
jective aspect,  holding,  therefore,  that  the  two  facts  are 
not  identical,  nor  their  relation  formulated  by  an  equa- 
tion, because  if  that  were  possible  the  distinction  between 
the  internal  and  the  external,  between  the  subjective  and 
the  objective,  would  disappear.  Subjective  manifesta- 
tion here  is  a  new  fact.  It  is  a  conscious,  new  and  more 
perfect  reality. 

§  51.  Psychological  and  Physical  Materialism.  Ma- 
terialists, since  Kant's  time,  believe  that  things  are 
not  knowable  of  themselves,  although  they  are  certain 
that  every  physical  or  psychical  phenomenon  belongs 
to  the  same  order,  that  is,  to  motion.  But  whoever 
believes  in  motion  must  believe  in  a  substratum  of 
matter.  And  as  it  is  not  shown  that  psychical  phe- 
nomenon consists  of  anything  save  motion,  it  is 
contradictory  to  state  that  the  base  common  to  both 
phenomena  is  not  knowable,  since  this  raises  the  purely 
physical  phenomenon  to  the  grade  of  the  other.  Neither 
is  it  just  to  consider  with  the  simple  perception  of  sense 
the  method  where  one  cause,  interpenetrating  with 
other  forces,  produces  a  phenomenon,  because  such  a 
notion  is  reached  only  by  way  of  the  concepts.  These 
contain  the  essence  of  things  and  make  clear  the  manner 
in  which  the  various  elements  mingle  and  act  in  order 
to  effect  the  result.  In  studying  the  reactions  between 
the  body  and  spirit  we  do  not  meet  any  greater  difficulty 


138  DEDUCTIVE  IDEA  OF  LAW 

than  is  found  in  the  physical  studies  themselves.  Sup- 
pose, says  Lotze,  that  we  wish  to  have  complete  knowl- 
edge of  a  mechanism,  we  begin  by  taking  apart  its  most 
minute  parts  and  then  by  looking  at  their  coordinance 
and  transmission  of  motion.  But  to  what  do  the  Co- 
ordinance  and  the  transmission  regarded  by  themselves 
tend?  In  what  does  the  coordinance  consist?  If  it  is  in 
the  forces  of  attraction,  how  are  such  forces  put  in  play? 
How  do  they  excite  a  certain  action  in  the  bodies? 
What  is  the  impulse  and  how  does  it  originate?  What  is 
transmission  of  motion  and  how  does  one  body  by  moving 
communicate  the  same  motion  to  another?  To  all 
these  questions  we  cannot  reply;  and  so  we  must  admit 
frankly  that  man  is  ignorant  of  these  things,  and  not 
imagine  illusory  solutions.  Lotze  calls  this  prudent 
manner  of  conduct  in  researches  about  physico-psychi- 
cal  mechanisms  the  theory  of  occasion.  Proceeding 
under  this  theory,  there  is  no  sudden  impediment,  be- 
cause physiological  psychology  can  appropriate  to  itself 
the  results  of  the  excellent  studies  in  psychological 
physiology  which  show  constantly  new  relations  and 
proportions  between  the  explication  of  the  organs  and 
the  psychical  activities.  Finally  .  we  must  reflect  that 
matter  is  not  the  object  of  sensible  perception  but  is 
(as  Stuart  Mill  defines  it)  the  permanent  possibility 
of  sensation.  Is  not  the  possible  in  itself  ideal?  Here 
materialism  is  converted  into  idealism,  and  Mill  agrees 
with  Berkeley.  In  truth,  the  conception  of  matter  is 
not  the  model  proof  of  objectivity  that  it  is  said  to 
be,  arising,  as  it  does,  from  a  long  and  difficult  mental 
elaboration,  which  includes  external  causes  as  they 
appear  to  it  and  not  as  they  are  in  themselves.  Extrin- 
sic agents  exist  for  us  as  they  are  felt  and  thought. 
Wherefore,  materialism  does  not  derive  what  is  subject- 
ive from  what  is  objective,  for  example,  sensation  from 


SPENCER'S  UNKNOWABLE  139 

the  stimuli,  but  receives  sensation  from  sensation, 
thought  from  thought,  and  does  not  escape  from  the 
idem  from  idem  (as  Spaventa  observes  in  his  book  on 
"  Kant  e  L'Empirismo"). 

§  52.  Spencer's  Unknowable.  With  this  much  on  the 
factors  of  the  correspondence  between  the  body  and 
spirit  as  a  premise,  we  must  see  in  what  form  such  an 
harmonic  life  is  realized  and  manifested.  Many  are 
inclined  to  believe  that  the  law  of  evolution,  impera- 
tive in  the  physical  world,  in  which  the  entities  form 
an  uninterrupted  progressive  series,  governs  also  in  this 
life.  Spencer  is  regarded  by  all  as  the  philosopher  of 
evolution.  His  theory,  as  gathered  from  his  "  First 
Principles  "  and  "  Principles  of  Psychology,"  can  be 
briefly  sketched:  Philosophy  unifies  knowledge,  but 
the  unification  cannot  be  perfect  because  there  will 
always  remain  something  absolutely  unknowable.  The 
external  and  internal  world  constitute  two  orders  of 
change,  whose  principles  we  cannot  know.  What  can 
be  known  of  external  change  depends  upon  the  elemen- 
tary conditions  of  knowledge.  The  ideas  about  the 
relations  between  the  states  of  knowledge  are  not  the 
real  similarities  or  differences  of  things,  and  therefore 
cannot  be  called  real  from  this  aspect.  But  they  are  real 
from  another  point  of  view  since  they  continue  in  the 
consciousness  which  cannot  change  or  destroy  them. 
Something,  therefore,  that  is  conditionally  or  absolutely 
determined,  should  correspond  to  them.  There  must  be 
an  underlying  force  in  all  changes.  The  conception  of 
the  persistence  of  force  contains  that  of  the  indestructi- 
bility of  matter  and  of  the  continuity  of  motion.  Every 
new  manifestation  of  force  is  the  equivalent  of  another  that 
disappears ;  the  quantity  of  matter  and  of  motion  remains 
unaltered  throughout  the  changes.  The  concentration 
of  matter  implies  the  dissipation  of  motion  and  the 


140  DEDUCTIVE  IDEA  OF  LAW 

absorption  of  motion  produces  the  diffusion  of  matter. 
In  other  words,  the  parts  go  closer  in  losing  motion,  and 
separate  in  acquiring  it.  In  concentration,  matter 
integrates;  in  diffusion,  it  dissolves.  In  all  distribution 
of  matter  and  motion  there  is  a  process  of  continuous  in- 
tegration and  dissolution.  If  there  is  evolution,  it  is  a 
passage  from  what  is  indistinct  to  what  is  distinct, 
from  the  homogeneous  to  the  heterogeneous.  Evolution  is 
inorganic,  organic  and  super-organic.  The  evolution  of  life 
is  a  never-ending  adaptation  of  internal  to  external  rela- 
tions, of  the  living  being  to  the  place  and  surroundings ; 
an  adaption  which  is  at  first  direct  and  homogeneous  and 
afterwards  indirect  and  heterogeneous.  Homogeneous 
adaption  takes  place  through  a  simple  external  means 
not  very  dissimilar  in  essence  and  force  from  the  con- 
scious acts  of  living  beings;  heterogeneous  adaption  is 
shown  in  changeable,  complicated,  and  diverse  circum- 
stances. Evolution  connotes  an  increase  of  attributes, 
functions,  and  organs.  It  is  increasing  multiplicity  and 
at  the  same  time  is  the  cause  of  a  greater  coordina- 
tion and  agreement  of  parts.  Psychical  life  is  a  process 
of  continual  differentiation  and  integration  and,  in  re- 
lation to  circumstances,  is  adaption  through  associa- 
tion. It  is  a  process  of  continual  differentiation  and 
integration,  because  in  all  phenomena  of  thought,  there 
should  be  a  unity  of  composition ;  in  a  word  the  form  and 
process  of  knowledge  should  remain  the  same.  Now  a 
form  of  knowledge  is  not  evolved  except  through  a 
change  of  state.  Whatever  change  takes  place  is  noted 
only  in  relation  to  the  anterior  similar  or  dissimilar 
changes.  As  long  as  this  relation  does  not  become  clear 
through  a  sufficient  repetition  of  similar  or  diverse 
change,  the  knowledge  of  it  is  obscure.  It  is  an  adapta- 
tion through  association,  in  that  the  intellect  should 
rule  the  series  of  its  internal  modification  in  order  to 


COSMIC  EVOLUTION  141 

harmonize  with  external  series,  with  co-existence,  and 
with  the  sequences  of  things. 

§  53.  The  Doctrine  of  Cosmic  Evolution.  Starting  out 
with  the  ideas  of  Spencer,  the  doctrines  of  cosmic  evo- 
lution, as  understood  by  the  greater  number  of  recent 
interpreters  and  as  illustrated  by  Anguilli  in  "La 
Filosofia  e  la  Scuola,"  can  be  briefly  outlined.  The 
doctrine  includes  the  questions  of  being  and  growth 
and  is  of  universal  application.  Everything  is  derived 
from  matter  and,  force,  which  is  motion,  as  is  matter 
itself.  Evolution  is  always  the  passage  from  the  homo- 
geneous to  the  heterogeneous,  from  the  indistinct  to  the 
distinct,  with  a  progressive  specification  of  parts,  organs, 
and  functions,  and  with  an  increasing  agreement  between 
them.  It  is  accomplished  by  epigenesis,  that  is,  the  new 
parts  do  not  unite  with  the  old,  as  new  formations,  but 
develop  from  them  as  transformations.  From  the  con- 
junction of  the  simple  elements  arise  phenomena  with 
properties  not  contained  in  the  elements.  From  a  higher 
aggregation  of  albuminoid  substances,  which  combine 
variously  with  some  minerals,  is  derived  the  protoplasm, 
a  ductile  transparent  substance  rather  unstable  and  rich 
in  active  properties.  It  is  easily  affected  by  the  action 
of  its  surroundings  and  reacts  energetically  against  them. 
This  faculty  of  reaction  is  irritability,  which  shapes 
into  sensibility,  a  habit  of  reaction  with  greater  facility 
and  promptness,  and  is  connected  with  motion.  Irrita- 
bility and  mobility  are  inseparable  in  life  from  nutrition 
and  procreation.  The  protoplasm,  besides  the  power  of 
reaction,  has  another  power  in  the  faculty  of  preserving 
as  a  molecular  disposition  the  effects  of  the  sudden 
changes  that  it  has  undergone.  '  In  other  words,  it  has 
memory  or  the  reproductive  functions.  Sensibility, 
mobility,  and  memory  are  found  in  every  phenomenon 
of  life  and  constitute  the  primitive  elements  of  mental 


142  DEDUCTIVE  IDEA  OF  LAW 

phenomena.  Thus,  the  question  of  the  origin  of  mind  is 
the  same  as  the  origin  of  life.  The  idea  of  life  is  dis- 
tinguished from  the  idea  of  organization  because  life  is  a 
product  of  the  aggregation  of  matter  and  organization  is 
a  product  of  the  development  of  life.  Before  the  most 
simple  form  of  organization,  there  existed  a  mass  of 
slimy,  amorphous  substance,  without  apparent  division, 
monera,  bathybius,  etc.;  the  monera  contained  all  the 
essential  activities  of  life.  From  the  unformed  monera 
come  the  individualized  monera  with  signs  of  organiza- 
tion, then  comes  the  cellule,  the  first  morphological 
organic  union.  The  morphological  evolution  of  the 
cellule  is  epitomized  by  every  higher  organism  which 
remakes  in  its  course  the  stages  covered  by  the  or- 
ganism that  preceded  it  in  the  scale  of  life.  The 
embryonic  process  has  its  rationale  in  the  evolution  of  the 
species  to  which  it  is  referable  and  of  which  it  outlines 
the  aspects  and  processes. 

§  54.  Environment  and  Heredity.  Gradual  and  pro- 
gressive transformation,  adds  Anguilli,  is  completed  by 
environment  and  heredity;  environment  corresponds  to 
nutrition,  heredity  to  reproduction.  Nutrition  is  the 
increase  of  the  living  substance  where,  through  favorable 
aggroupment  of  means  in  its  external  surroundings,  it 
can  gather  in  the  evolutionary  state  more  than  it  loses. 
Advantageous  variation  depends  upon  the  abundance 
of  nutritious  means  and  not  upon  disadvantageous 
circumstances.  Before  a  struggle  with  its  rivals,  an 
organized  entity  should  gain  its  position  against  exte- 
rior agents.  It  should  acquire  the  property  which 
renders  it  fit  to  survive.  From  the  processes  of  repro- 
duction and  the  circumstances  of  generation  come 
other  variations.  The  generated  unities  can  separate  or 
can  remain  united  to  sustain  better  the  attack  of  external 
circumstances.  The  living  entity  multiplies ;  it  develops 


SPENCER'S  EVOLUTION  143 

new  complications,  and  evolution  brings  about  a  division 
of  physiological  labor.  With  the  law  of  division  of 
physiological  labor,  is  bound  the  other  of  association, 
which  is  a  means  for  the  preservation  or  perfection  of 
existence,  a  potent  factor  in  biological  evolution.  And 
here  we  must  note  too,  that  the  principle  of  the  struggle 
for  life  and  that  of  choice  or  selection  are  applicable  to 
the  parts  of  the  organism,  to  the  molecules,  cellules, 
tissues,  and  organs.  The  properties  acquired  in  such  an 
internal  struggle  make  conditions  favorable  for  the 
external  struggles  of  the  organism.  Adaptation  becomes 
higher  as  beings  capable  of  a  larger  imagination  and  of  a 
more  provident  intellect  are  found.  Progressive  and 
selective  variability  is,  without  doubt,  greater  in  the 
being  in  whom  the  mental  faculties  prevail.  The  law  of 
association  can  also  be  considered  in  relation  to  an  organ- 
ism which  becomes  more  complex  or  in  relation  to  other 
organisms.  The  first  form  of  internal  association  tends 
to  volume  (as  in  the  infusoria).  Then  association  is 
seen  in  compositive  individuals  bound  together  by  the 
internal  communication  (as  in  the  reptilia),  and  by 
progressive  transformation  in  the  beings,  it  develops 
into  the  groups  of  organs  in  the  vertebrate  animals, 
which  are  marked  with  a  greater  nervous  and  mental 
centralization.  The  condition  of  development  of  com- 
plex organisms  is  the  formation  of  sensibility,  and  social 
consciousness,  together  with  a  principle  of  coordination 
in  their  movements. 

§  55.  Criticism  of  Spencer's  Evolution.  The  theory 
of  Spencer  is  not  entirely  empirical,  as  many  believe, 
because  the  supreme  principle  of  the  external  and 
internal  world  of  the  two  orders  of  change  is  unknow- 
able and  transcendental,  and  is  therefore  without 
the  confines  of  experience.  It  does  not  come  from  the 
mystery  which  the  positivists  find  in  metaphysical  doc- 


144  DEDUCTIVE  IDEA  OF  LAW 

trine,  because  this  absolute  principle  is  not  knowable 
and  the  rationale  of  its  manifestation  cannot  be  known. 
How  is  it  possible  to  say  what  a  thing  is,  if  it  has  no 
relation  to  knowledge?  If  a  thing  is  per  se  unknow- 
able, it  does  not  exist  for  the  mind.  It  is  nothing. 
Spencer  analyzed  the  data  of  experience  and  came  to  the 
ultimate  elements,  to  ideas  which  resisted  analysis,  and 
were  irreducible,  before  which  he  had  to  stop.  These 
ultimate  elements  are  space  and  time  (as  formal  con- 
ditions), matter,  force,  and  motion.  Universal  analytical 
truths  are  connected  with  these;  the  indestructibility  of 
matter,  the  conservation  of  energy,  the  transformation 
of  forces,  the  continuity  of  motion  and  the  like.  He 
then  with  such  elements  as  the  basis,  reconstructed  the 
cosmos,  through  the  laws  of  evolution  which  imply 
integration  and  differentiation.  The  ultimate  elements 
were  conceived  of  by  the  English  philosopher  as  mani- 
festations of  a  principle  which  does  not  know  itself. 
Now  if  this  principle  is  unknowable,  it  cannot  be  mani- 
fested. Only  what  can  be  known,  can  be  shown  and 
revealed.  It  is  useless  to  state  that  the  ultimate 
elements,  matter,  force,  motion,  are  knowable  if  they 
depend  upon  an  unknowable  power.  Spencer  ad- 
mits that  it  is  not  possible  to  know  reality,  except 
as  it  appears  to  us  and  as  it  is  present  in  the  mind.  And 
yet  he  raises  the  unknowable  to  a  principle  of  itself. 
Spencer  is  not  consistent,  and  this  is  true  from  another 
point  of  view  as  well,  because  first  he  said  that  things 
are  as  they  are  shown  to  the  mind,  and  then  that  the 
latter  in  its  self-adaption  governs  the  series  of  modifica- 
tions in  conformity  to  objective  coexistence  and  the 
real  sequence  of  things.  He  did  not  have  an  exact  con- 
ception of  evolution,  which  is  defined  in  his  book  chiefly 
in  a  quantitive  aspect.  The  increase  of  extension  in 
space  and  time,  division  and  subdivision,  the  increase  in 


EVOLUTION  NOT  MATHEMATICAL       145 

comprehension  and  complexity  are  only  forms  or  methods 
of  quantity.  Evolution  is  not  only  a  motion  of  increase 
of  division  and  coordination,  but  is  a  process  of  an  in- 
creasing and  always  more  perfect  qualification.  If 
this  conception  is  accepted,  the  number,  variety,  and 
intermingling  are  no  longer  exclusive  factors  in  the 
value  of  things.  It  is  true  that  Spencer  shows  that 
evolution  is  constant  differentiation,  but  he  does  not 
make  clear  enough  what  the  Germans  call  the  qualitative 
momentus,  in  which  a  constantly  higher  heterogeneity 
is  not  thought  to  be  explicable  with  simple  changes  of 
quantity  or  combinations  of  an  inferior  order;  in  other 
words,  not  measurable  by  simple  physical  forces. 

§  56.  Evolution  is  not  Mathematical.  Experience  and 
scientific  reasoning  teach  that  matter  is  one,  that 
it  has  an  atomic  constitution  and  is  indestructible. 
They  teach,  furthermore,  that  force  in  its  external 
and  mechanical  aspect  is  the  movement  of  matter 
itself  and  that,  therefore,  matter  and  force  are  one; 
that  matter  and  force  do  not  create  or  destroy  one 
another;  that  matter  must  have  possessed  from  the 
beginning  a  quantity  of  motion  not  subject  to  increase  or 
diminution.  From  this,  it  follows  that  the  conception 
of  the  persistence  of  force  is  identified  with  that  of  the 
continuity  of  motion.  But  they  do  not  teach  us  that 
evolution  lies  in  the  whole  and  not  the  parts,  nor  do 
they  tell  us  that  there  is  a  direct  transformation  of  every 
kind  of  force.  Every  evolution  demands  a  precedent 
dissolution  or  dissipation,  and  therefore  there  must  be  a 
continual  circulation  of  matter  and  force.  It  has  been 
well  said  by  Masci  that  a  rectilinear  evolutionary 
process,  that  is,  the  evolution  of  the  whole,  would  be  in 
contradiction  to  the  principle  of  the  conservation  of 
energy,  since  it  would  necessarily  include  a  continual 
increase  of  energy.  If  direct  transformation  of  the 


146  DEDUCTIVE  IDEA  OF  LAW 

physico-chemical  forces  is  proved,  we  cannot  say  the 
same  of  the  physico-chemical  forces  in  relation  to  the  vital 
forces.  Experience  does  not  show  this  kind  of  a  trans- 
formation, nor  does  it  authorize  us  to  conclude  in 
favor  of  the  thesis  which  upholds  the  transformation  of 
nervous  force  into  mental  force.  The  fact  shown  is  only 
this,  that  psychological  variations  correspond  to  the 
physiological  manifestation  of  the  organism.  The  simple 
parallelism  is  not  indicative  of  transformation  because  it 
can  be  derived  from  the  union  of  diverse  elements,  which 
are  reciprocal  conditions,  or  from  a  kind  of  bilateral 
existence  of  the  same  energy.  Neither  does  experience 
and  reason  force  us  to  hold  that  everything  is  reducible 
to  matter  and  motion,  and  that  every  formation  is 
resolved  in  the  last  analysis  into  its  different  distribu- 
tion. The  existence  of  the  products  of  evolution,  which 
have  properties  not  contained  in  their  components,  is 
undeniable.  Lewes  distinguishes  resultant  facts  which 
should  be  referred  integrally  to  their  cause,  and  emergent 
facts  which  cannot  be  referred  to  them,  because  they 
contain  new  qualities  not  included  in  the  elements  from 
which  they  are  derived.  Life,  for  example,  presupposes  a 
physico-chemical  combination,  but  that  is  not  the  only 
cause,  and,  therefore,  life  is  an  emergent  fact,  like  mind 
which  presupposes  life  but  cannot  explain  it.  If, 
therefore,  there  are  true  emergent  facts,  if  evolution 
proceeds  through  heterogeneous  generation,  the  new 
products  cannot  be  created  by  mere  mechanical  causes 
from  the  various  distributions  of  matter  and  motion,  but 
must  be  born  from  intimate  energies.  Recourse  cannot 
be  had  to  the  conception  of  an  energy  innate  in  the  sub- 
stratum, in  order  to  make  the  principle  of  causality  clear 
and  to  show  the  truth  of  emergent  or  heterogeneous  facts. 
§  57.  Mechanical  Evolution.  Mechanical  evolution 
explains  all  reality  by  foreign  elements  and  prop- 


MECHANICAL  EVOLUTION  147 

erties.  Its  idea  of  force  as  a  movement  of  matter 
and  an  extrinsic  movement  attests  its  incomplete- 
ness and  absurdity.  Within  its  own  confines,  the 
mind  cannot  understand  either  the  highest  products 
of  volition,  which  contain  something  new  and  not 
reducible  to  mechanical  elements,  or  even  the  direction 
of  forces,  which  is  observed  in  a  gradual  ascent  from  the 
forms  of  the  kingdom  of  nature  to  that  of  the  spirit. 
The  facts  of  the  cosmic  order  cannot  be  reconciled  with 
mere  mechanics,  because  in  that  case  everything  would 
be  the  effect  of  external  and  casual  combinations  of 
motion.  Pure  mechanics  and  causality  are  logically 
one  and  are  in  absolute  antithesis  to  the  direction  of 
forces  and  coordination.  The  conception  of  a  causality 
or  permanent  accidentality,  the  presupposition  of 
mechanical  transformism,  is  a  contradiction  in  terms, 
because  true  chance  is  always  dissimilarity,  difference, 
and  variety,  admitting  the  infinite  indeterminateness  of 
nature  in  her  productive  activities.  A  chance  which  is 
always  repeated  is  no  longer  chance ;  it  is  its  opposite ; — 
mind,  as  Vico  would  say.  Reality  has  not  only  external 
and  mechanical  properties  but  originally  possesses  other 
internal  powers  and  subjective  and  dynamic  qualities. 
Through  evolution,  it  is  continually  raised,  assuming 
more  complicated,  heterogeneous,  and  perfect  forms. 
But  even  from  its  lowest  origin,  it  has  shown  two  kinds  of 
qualities.  The  external  characteristics  predominated  at 
the  beginning  and  it  is  only  later  that  final  supremacy  of 
the  internal  qualities  has  been  assumed.  At  first, 
reality,  though  appearing  with  both  kinds  of  properties, 
assumed  forms  more  natural  than  spiritual ;  now  the 
opposite  is  true.  The  internal  property,  at  first,  is 
simple  energy  enclosed  in  the  atom,  which  is  not  identi- 
fied with  receptivity,  nor  related  to  motion  communi- 
cated from  without.  It  is  at  first  a  power  of  modifying 


148  DEDUCTIVE  IDEA  OF  LAW 

relations  by  the  use  of  means  within  its  grasp,  nor  is  it 
vital  and  psychical  as  Masci,  the  author  of  an  efficient 
criticism  of  mechanical  transformism,  has  pointed  out. 
Such  energy,  nevertheless,  is  the  first  and  weakest  form 
of  reaction  that  emphasizes,  rather  confusedly,  the 
nature  of  the  subject.  Afterwards,  the  internal  property 
gains  more  control,  develops  more,  becomes  more  active, 
responds  better  to  stimuli,  succeeds  in  modifying  the 
relations  by  the  actions  of  means  within  its  grasp,  and 
advances  by  degrees  to  the  sensibility  of  an  animal  and 
the  knowledge  of  a  man.  Knowledge  is  not,  however, 
the  effect  of  sensibility.  Sensibility  is  not  derived  from 
irritability  and  the  latter  is  not  formed  from  the  elements 
of  inanimate  nature.  Each  of  these  facts  is  constituted 
from  qualities  that  are  not  found  in  the  precedent  form. 
It  is  heterogeneous,  and  depends  upon  a  particular  and 
new  attainment  of  the  energy  intrinsic  in  the  material 
substratum,  not  explicable  with  the  simple  conceptions  of 
matter  and  force  as  attributes  extrinsic  to  the  body. 
From  this  point  of  view,  it  is  not  true  that  the  problem 
of  the  origin  of  the  mind  is  identical  with  that  of  the 
origin  of  life,  although  the  mind  is  not  possible  within 
the  limits  of  experience  without  sensibility,  and  sensibility 
is  not  possible  without  irritability,  mobility,  nutrition,  re- 
production, and  so  on.  The  phenomena  of  life  do  not 
appear  without  an  organic  synthesis  of  the  material 
elements,  although  it  may  be  confused,  indistinct,  and 
rudimental,  and  do  not  exist  before  it.  Sensibility  is 
always  connected  with  some  kind  of  an  animal  structure, 
and  does  not  develop  prior  to  it.  Under  this  principle  of 
intrinsic  energy  to  which  the  phenomena,  not  resolvable 
into  matter  and  motion,  are  reduced,  evolution  compre- 
hends reality,  understood  in  its  integrity. 

§  58.     Habit.     The  theory  of  evolution  in  general,  as 
explained  by  the  Darwinists,  has  a  distinctly  mechanical 


HABIT  149 

character.  Lamarck  states  that  the  active  principle  of 
transformation  in  animals  is  the  environment  which 
modifies  the  manner  of  living  and  creates  new  habits  and 
needs.  It  is  capable  of  changing  the  substances  of  nutri- 
tion and  the  structure  of  organs.  Darwin  starts  out  with 
the  superiority  which  is  obtained  by  organized  entities  by 
the  accidental  acquirement  of  advantageous  qualities  in 
the  vital  competition  or  struggle  for  life.  Malthus 
raised  this  intuition  to  the  dignity  of  an  economico- 
demography;  and  later  it  has  proved  true  in  biology. 
Habit  fixes  this  quality,  heredity  transmits  and  consol- 
idates it ;  and  natural  selection  is  attained  by  the  origin 
of  new  species.  For  Lamarck,  variation  is  established 
little  by  little  in  the  course  of  existence;  for  Darwin,  it 
appears  even  from  birth  or  during  embryonic  life  and  is 
not  reliant  upon  heredity.  It  is  extended  by  Spencer  to 
the  intellectual  life  and  by  others  to  personal  character- 
istics. It  is  corrected  to  avoid  the  intrinsic  defect  of  its 
childish  development,  which  led  to  the  hypothesis  of  the 
"tabula  rasa"  of  the  old  empiricists  and  materialists. 
But  this  well  worked  out  correction  does  not  exclude 
the  hypothesis,  because  hereditary  predeterminations 
resolved  into  their  primal  elements  and,  considered  at  the 
moment  when  they  are  fixed  upon  the  life  and  spirit,  are 
only  characteristics  imported  from  without.  The  spirit 
especially,  before  receiving  such  impress  from  external 
circumstances,  before  habits  and  hereditary  transmis- 
sion have  affected  it,  is  a  blank,  unfigured  slate.  It,  at 
that  moment,  has  only  receptivity;  later  it  acquires 
spontaneity  which  arises  from  the  accumulation  and 
reinvigoration  of  the  impress  given.  From  this  it  follows 
that  the  theory  cannot  be  freed  from  the  representation 
of  the  living  being  as  passive  and  of  the  spirit  as  a  mere 
echo  of  the  world  which  surrounds  it  and  to  which  it 
adapts  itself.  Yet  the  spirit  lives  a  life  which  has  need 


150  DEDUCTIVE  IDEA  OF  LAW 

of  corporeal  excitements  and  is  active  and  develops 
according  to  its  own  laws.  It  is  true,  nevertheless,  that 
habit  introduces  into  life  a  method  that  heredity  can 
transfer  and  increase  without  an  original  disposition. 
Habit  is  a  particular  attainment  of  a  living  being  ac- 
quired by  the  frequent  repetition  of  the  same  actions  or 
by  the  prolongation  of  a  single  act.  Aristotle  observes 
that  some  men  contract  with  a  single  impression  a  habit 
more  complete  than  others  contract  upon  frequent 
repetition.  Habit  produces  the  great  result  of  making 
the  past  live  again  in  the  present  and  future,  by  diminish- 
ing gradually  the  force  necessary  to  an  act  and  increasing 
the  energy  and  facility  of  the  power  to  do  it.  With  this 
understood,  it  is  not  hard  to  see  that  habit,  arising  in 
some  manner  from  repetition  and  continuity,  is  com- 
posed of  many  movements  of  which  the  first  is  the  germ 
that  begins  the  series  and  is  shown  in  the  second.  The 
second  movement  has  its  reason  in  the  first;  the  latter 
must  be  derived  from  some  other  cause  besides  the 
habit,  therefore  it  is  primal  and  new.  Although  the 
first  movement  is  simply  accidental,  yet  the  life  and 
spirit  move;  if  they  move,  it  signifies  that  they  can 
move  themselves.  They  have  a  natural  habit  of 
motion.  Plants  and  animals  respond  to  an  external 
excitement.  They  are,  therefore,  excitable  and  have  a 
natural  disposition  to  excitement.  On  the  other  hand, 
habit  is  not  a  creative  power;  it  is  the  original  energy, 
the  same  nature  grown,  developed,  and  reinforced. 

§59.  Heredity.  What  has  just  been  said  about  habit 
can  refer  as  well  to  heredity,  because  in  re  petition,  each  act 
inherits  something  from  its  precedent  and  transmits  it, 
slightly  increased ,  to  a  subsequent  act.  Habit  is  an  hered- 
ity circumscribed  by  the  confines  of  the  life  of  an  individ- 
ual. Heredity  is  a  habit  which  passes  from  generation  to 
generation.  Like  habit,  it  is  connected  with  the  laws  of 


HEREDITY  151 

evolution,  giving  the  qualities  fixed  by  repetition  or  pro- 
longation of  acts  by  the  ancestors  to  the  descendants. 
If  evolution  was  not  followed  by  heredity  every  new 
modification  would  disappear  at  the  death  of  the  individ- 
ual. And  if  there  was  heredity  and  no  evolution,  the 
entities  would  be  always  identical  and  there  would  be  no 
change  in  the  world.  Like  habit,  heredity  has  no 
creative  power  but  is  a  faculty  of  growth,  or  consolidation 
and  perfection.  In  fact,  disease,  wealth,  and  nobility, 
in  that  they  can  go  back  to  a  remote  age,  presuppose  a 
first  individual  who  was  the  victim  of  his  own  constitu- 
tion and  external  circumstances,  a  head  of  a  house  that 
knew  how,  by  merit  or  force,  to  acquire  a  title  and 
amass  wealth.  In  this  way  he  led  to  dispositions  which 
are  not  the  children  of  individual  or  hereditary  customs 
but  are  the  product  of  accident  free  from  any  connection 
with  nature.  The  accidental  cannot  be  understood, 
when  we  abstract  the  character  of  the  being  in  which  it 
is  found.  It  is  an  anomalous  variation  but  not  a  con- 
tradiction of  the  nature  of  the  being.  It  is  an  anomaly 
in  respect  to  ordinary  methods  and  derived  character- 
istics but  not  in  respect  to  essential  characteristics. 
We  must,  therefore,  place  by  heredity  the  idiosyncrasy 
which  explains  it,  as  a  generation  of  idiots  or  epileptics 
results  in  an  idiot  or  epileptic  descended  from  parents  and 
grandparents  who  were  of  sound  mind  and  body.  But 
even  if  heredity  is  not  a  creative  force,  its  importance,  as 
a  means  of  transmission,  is  very  great  because  the  limbs, 
trunk,  head,  features,  form,  volume,  and  irregularity  of 
the  skeleton,  proportions  of  the  cranium,  thorax,  pelvis, 
and  spine,  the  quality  of  the  system  of  circulation,  of 
the  digestive,  muscular,  and  nervous  systems,  the  size 
and  form  of  the  circumvolutions  of  the  brain,  the 
abundance  and  scarcity  of  blood,  the  degree  of  fecundity, 
the  length  of  life,  the  voice,  and  the  organic  diseases  pass 


152  DEDUCTIVE  IDEA  OF  LAW 

from  father  to  son  with  great  frequency.  Neither  can 
one  fail  to  recognize  that  psychological  heredity  trans- 
mits the  instincts;  the  modalities  of  the  senses,  memory, 
imagination,  various  habits,  sentiments,  and  emotions, 
individual  and  national  characteristics  and  finally 
hallucinations,  monomanias,  dementias,  and  paralyses. 
So  physiological  like  psychological  heredity  is  now 
immediate  and  direct,  and  now  mediate.  In  the  last 
case,  there  is  a  phenomenon  of  atavism  which  is  not 
conceivable  without  presupposing  the  latent  state  of 
hereditary  germs. 

§  60.  Mechanics  do  not  fully  Explain  Evolution. 
The  laws  of  evolution  cannot  be  understood  in  all 
grades  through  mechanics  alone,  as  the  believers  in  the 
genealogical  theory  maintain.  The  victory  of  mechanics 
produces  a  diminution  of  force  because  if  the  quicker 
motion  conquers  the  slower  it  follows  that  the  quicker 
becomes  relatively  slower.  This  does  not  happen  in  the 
intellectual,  moral,  and  esthetic  relations,  in  which  the 
stronger,  that  is  the  most  ingenious  and  clever,  the  best 
and  most  perfect  character  by  its  conquest  gains  and 
does  not  lose  in  bounty,  beauty,  and  cleverness.  Experi- 
ence shows  that  criticism  makes  the  mind  acute  and  gen- 
erates new  ideas;  the  ethical  will,  by  facing  evil,  is 
tempered  and  strengthened.  The  insufficiency  of 
mechanics  and  the  need  of  theology  not  abstract  and 
extrinsic  to  life  but  concrete  and  objective,  is  proved  by 
one  of  the  chief  principles  of  the  Darwinian  theory,  — 
the  theory  of  the  opportune  adaptation  of  the  entity.  In 
reality,  the  advantageous  variations  of  adaptation  are  only 
means  to  obtain  the  safety  of  the  entity.  It  is  not 
accurate,  therefore,  to  say  that  Darwinism,  by  itself, 
considered  in  all  its  power,  is  the  negation  of  finality, 
that  it  is  "finis  finis,"  as  Spaventa  called  it  in  "La 
Legge  del  Piu  Forte."  Advantageous  variations  are  not 


EVOLUTION  INEXPLICABLE  153 

pure  and  simple  changes,  because  they  signify  ameliora- 
tion and  progress.  The  concepts  of  variability,  heredity, 
cause,  and  law  are  not  enough  to  explain  this  increasing 
perfection.  To  explain  the  discernment  of  the  best 
(which  is  natural  selection)  we  need  a  conception  of  an 
impulse  towards  an  end.  The  struggle  is  seen,  it 
develops  in  the  senses,  but  the  selective  choice  or  fore- 
sight is  supersensitive.  It  is  neither  visible  nor  tangible, 
because  it  includes  the  end.  The  struggle,  the  separa- 
tion of  descendants,  their  association  to  better  resist 
environment,  the  more  abundant  nutrition  of  life  without 
struggle,  are  means  of  selection.  And  here  we  must 
notice  that  the  internal  property  of  matter  or  intrinsic 
energy  of  the  atom,  of  which  we  have  spoken  before,1 
is  fundamentally  the  initial  and  obscure  tendency  of  the 
lower  grades  of  existence.  Later  it  becomes  the  plastic 
power  of  functions  that  are  modeled  in  organs  adapted 
to  their  regular  and  full  development  and  finally 
raised  to  the  rational  will  power  of  man.  Without  this 
internal  energy,  or  tendency,  the  progressive  order  from 
the  natural  forms  to  the  spiritual  would  not  be  intelligible. 
It  has  been  said  and  certainly  sufficiently  proved,  that 
the  laws  express  the  tendency  of  phenomena  to  develop 
in  constant  determinate  relations,  upon  which  the  cosmic 
regularity  depends.  The  error  of  the  metaphysicians 
did  not  consist  in  recognizing  this  tendency  in  human 
beings,  but  in  conceiving  it  to  be  a  truly  human  finality 
like  that  of  consciousness  and  will.  The  tendency  is  the 
germ  of  the  immanent  and  objective  theology  shown  in 
modern  empiricism,  although  the  moderns  openly  dis- 
agree with  the  search  for  ends  called  metempiricism  by 
Lewes,  who  denies  their  existence. 

§  61.   As  yet,  theEvolution  of  Hie  Social  Organization  is 
Inexplicable.     The  mechanical  theory  of  evolution  does 

1  Cf.  §  57  ante. 


154  'DEDUCTIVE  IDEA  OF  LAW 

not  take  sufficient  account  of  the  fact  that  man  enters 
into  the  struggle  of  life  not  only  with  his  organic  facul- 
ties, but  with  a  complexity  of  intellectual  and  moral 
forces  capable  of  transforming  the  exterior  world.  It  is 
true  that  man  is  the  son  of  earth,  as  the  mythologists 
say.  It  is  true  that  he  is  made  of  water,  air,  and  dust; 
and  that  the  harmony  between  the  earth's  forms,  the  flora 
and  fauna,  are  reflected  in  the  phenomena  of  the  other 
fauna,  humanity.  But  none  can  doubt  the  action  of  man, 
who  succeeds  in  modifying  most  noticeably  the  surface  of 
the  world  by  stripping  it  of  its  forests  and  reclothing  it 
with  new  plants  at  his  pleasure,  by  piercing  mountains  and 
joining  seas.  This  control  of  man  over  nature,  in  place 
of  the  action  of  nature  on  man,  which  developed  to  a 
large  extent  in  primitive  times,  is  important,  because  on 
the  one  hand  it  is  the  beginning  of  civilization  and  the 
growing  series  of  the  victories  of  intelligence,  will,  and 
power  over  external  agents,  and  on  the  other  because 
it  serves  to  show  (as  Lampertico  pointed  out)  that  mes- 
sology,  or  the  science  of  the  relation  of  beings  to  the 
surroundings  in  which  they  live,  from  one  aspect  materi- 
alizes man  and  from  another  spiritualizes  the  exterior 
world.  Furthermore,  we  must  remember  that  the 
great  organism  of  human  society,  if  not  those  of  particular 
political  and  national  societies,  has  eternal  life.  It  is 
always  acquiring  more  new  forces  as  it  extends  and 
deepens  the  connective  tissue  represented  by  the  innum- 
erable accumulations  of  experience  which  excite  psychical 
activities  and  functions  not  before  developed;  on  the 
other  hand,  the  natural  organism  of  the  individual  begins 
in  infancy,  and  proceeding  toward  adolescence,  youth,  and 
maturity,  is  exhausted  in  old  age  and  disappears. 
Individuals  arise  and  disappear,  but  human  society  goes 
on  forever  and  the  history  of  the  life  of  our  race  does  not 
end.  Evolution,  therefore,  has  a  different  meaning  when 


HISTORICAL  REVIEW  OF  THEORIES      155 

it  is  studied  in  relation  to  this  great  organism.  Spencer 
himself  distinguishes  the  inorganic  from  the  organic  and 
super-organic  evolution,  although  he  admits  that  inorganic 
matter  is  not  conf usable  with  life,  and  that  the  latter 
is  not  one  with  the  ethical  and  social  organism.  It  is 
certain  that  science  has  not  reached  the  point  of  sur- 
prising the  life  that  lies  outside  of  matter,  that  is,  the 
transformation  of  inorganic  matter  into  an  organized 
body,  neither  has  it  yet  been  able  to  show  how  the  ego 
and  the  spiritual  life  of  the  human  race  are  derived  from 
the  combinations  of  atoms.  Two  great  modern  nat- 
uralists stop  before  the  continuity  of  molecular  motion  in 
the  phenomena  of  life  and  consciousness.  One  is 
Virchow  and  the  other  Tyndall. 

§  62.  Historical  Review  of  the  Theories  of  Evolutions. 
We  may  here  recall  that  the  theory  of  evolution  has  its 
roots  in  the  ideas  of  Aristotle,  Leibnitz,  Vico,  and  Hegel. 
Aristotle  conceived  of  the  spirit  as  action  or  ivre\exta, 
and  the  body  as  power  or  matter;  for  him  the  nutritive, 
motor,  sensatory,  and  intellectual  spirits  produced  the 
various  grades  of  life,  where  nutrition,  motion,  the  senses, 
and  mind  are  respectively  predominant,  and  form  the 
concrete  development  of  the  tvreXexfa.  The  spirits 
or  faculties  are  placed  so  that  the  lower  and  the  less 
complicated  have  the  possibility  of  the  higher  and  are 
contained  and  at  the  same  time  governed  by  the  latter. 
Leibnitz  regarded  the  spirit  as  a  monad.  The  monad 
completes  an  intrinsic  evolution,  in  which  the  universe 
is  contracted  (as  Bruno  poetically  says)  by  the  represen- 
tative power  of  each  monad.  Extension,  having  its  roots 
in  the  obscurity  of  the  monad,  is  a  phenomenon  of  the 
latter.  Vico  understood  that  trufe  principles  become  real 
through  evolution ;  things  first  being  evolved  from  them 
and  ultimately  terminating  in  them.  The  nature  of 
things,  he  said,  is  nothing  but  their  birth.  The  spirit, 


156  DEDUCTIVE  IDEA  OF  LAW 

for  him,  changes  from  sense  and  imagination  to  fully 
developed  reason;  whence  the  evolution  of  the  three 
historical  ages.  Neither  can  it  be  doubted  that  from  the 
Logos  to  nature  and  from  nature  to  spirit  is,  for  Hegel, 
a  complete  evolution.  In  this  his  followers  and  all  his 
adversaries  agree,  although  the  latter  say  that  it  is  a 
question  of  purely  dialectic  and  subjective  evolution. 


THE  SPIRIT  AS  A  MONAD  157 


CHAPTER  V 

COROLLARIES  OF  THESE  THEORETICAL 
PRESUPPOSITIONS 

THE  THEORY  OF  EVOLUTION  AND  PSYCHOLOGY.  —  FUNDAMEN- 
TAL SENTIMENT  AND  THE  SENSATIONS.  —  CONSCIOUSNESS  AND 
ITS  ORIGIN.  — SENSIBLE  AND  COGNITIVE  REPRESENTATIONS.— 
THOUGHT  AND  THE  CATEGORIES.  —  COGNITION  ACCORDING  TO 
OBJECTIVE  EMPIRICISM.  —  CRITICISM  OF  THAT  THEORY. 

§  63.  The  Spirit  as  a  Monad.  The  person  presupposes 
psychological  life  in  its  highest  grade ;  the  spirit,  purely 
sensitive,  united  to  the  body  cannot  at  once  assume 
the  position  and  title  of  a  person.  The  theory  of 
evolution,  applied  to  the  spirit,  strictly  understood 
in  the  fullness  of  its  activity,  completes  and  amends 
a  fundamental  notion  of  ancient  psychology  and  re- 
moves a  great  difficulty.  Ancient  psychology  denned 
the  spirit  as  a  simple  substance  and  went  no  further, 
while  the  physicists  base  their  theories  on  atoms  or 
monads,  from  whose  combination  bodies  are  derived. 
Now  how  can  the  psychological  monad  be  distinguished 
from  the  physical?  The  conception  of  a  simple  sub- 
stance is  not  enough  to  explain  fully  the  spirit  and  deter- 
mine its  full  development.  We  must  consider  the  spirit 
not  merely  as  a  monad,  but  as  action  and  energy  shown 
in  the  rich  development  of  its  attitudes  and  capacities, 
because  its  true  essence  lies  in'  action  and  growth,  as 
experience  teaches  us.  The  great  difficulty  which  evolu- 
tion removes  lies  in  the  vexed  question  of  the  relation  of 
the  spirit  to  its  capacities.  Gallupi  thinks  that  external 


158  COROLLARIES 

and  internal  sensibility,  analysis,  synthesis,  imagination, 
desire,  and  will  are  original,  diverse,  and  irreducible 
qualities  of  the  spirit.  Cousin,  Rosmini,  and  Lotze 
seem  to  have  the  same  opinion.  Lotze  writes  that  there 
are  many  possibilities  in  the  specific  nature  of  the  spirit 
which  can  contain  original  diverse  characteristics  as 
easily  as  the  matter  composing  the  earth  can  be  variable. 
Such  possibilities  are  realized  under  the  influence  of 
external  impressions.  On  the  other  hand,  Condillac, 
Herbart,  Spencer,  and  Bain  believe  that  the  capacities 
are  only  quantitative  differences.  Condillac  states  that 
all  the  powers  are  transformations  of  sense  • — •  thus 
thought  (and  here  he  agrees  with  Campanella)  can  be 
called  rare  and  pure  sense.  Herbart  does  not  believe 
in  original  differences  in  the  capacities,  nor  in  moments 
of  development,  but  regards  the  differences  as  states  of 
the  spirit  growing  out  of  representation.  Representation 
is  the  conservative  act  of  the  spirit  disturbed  by  impres- 
sions. The  spirit  is  one  of  those  simple  "  reals,"  not 
relative,  but  existing  of  itself,  which  Herbart  thought 
out  to  solve  the  contradictions  in  the  world  of  phenomena. 
If  it  is  thus  self-sufficient  and  has  no  need  of  contacts; 
if  contacts  do  not  alter  its  being  and  are  accidental,  it  is 
not  true  that  representation  and  the  capacities  are 
reducible  to  external  states  and  are  subject  in  their  com- 
binations to  the  laws  of  mechanics.  The  teaching  of 
Spencer  and  Bain,  that  sentiment,  emotion,  and  will  are 
methods  of  adaptation  and  association,  does  not  differ 
much  from  this  theory.  In  the  judgment  of  the  most 
famous  English  psychologists  of  to-day,  the  law  of 
association, illustrated  by  Hobbes,  Hume,  and  Hartley,  is 
the  equivalent  in  psychology  of  the  law  of  attraction  in 
the  physical  world. 

§  64.     Spirit  is  not  Divisible,  Qualitatively  or  Quantita- 
tively.    These  beliefs  do  not  harmonize  the  unity  of  the 


SPIRIT  NOT  DIVISIBLE  159 

spirit  with  its  concreteness  or  multiplicity  of  capacities. 
In  fact,  those  who  believe  that  the  capacities  are  mere 
qualitative  and  original  difference  implicitly  deny  the 
identity  of  the  spirit,  since  they  can  only  conceive  of  such 
differences  as  characteristics,  elements,  and  parts.  In 
qualitative  difference  each  spirit  is  not  a  whole  entity, 
but  a  part  of  an  entity.  In  it  an  entity  is  divided  and 
variously  distributed,  each  part  having  its  own  content. 
Now  experience  proves  that  the  spirit  is  a  single  indivis- 
ible force.  When  it  begins  its  life  from  the  senses,  it  does 
not  lack  representative  virtue,  mind,  and  will;  and  when 
it  is  self-revealed  in  reason,  it  does  not  cease  to  be  sense 
and  representation.  In  both  cases,  there  is  only  the 
prevalence  of  one  particular  form  over  the  others.  They 
who  think  that  the  capacities  are  qualitative  differences, 
if  they  do  not  deny  the  identity  of  the  soul,  at  least  do 
not  explain  its  various  development,  because  between 
sense,  representation,  and  intellect  there  is  difference 
apart  from  the  abstract  relation  of  more  or  less.  In 
intellect  there  is  sense,  but  it  is  sense  resolved  in  a  new 
and  diverse  manner  of  the  spirit  which  cannot  be  shown 
by  signs  of  addition  or  multiplication.  Granted  that 
the  capacities  are  quantitative  differences,  and  there- 
fore extraneous  determinations  of  the  spirit,  it  follows 
by  this  theory  that  continuous  and  profound  psychologi- 
cal phenomena  (a  never-ending  qualification)  cannot  be 
explained.  Therefore,  some  say  that  the  contrary  theory, 
which  we  have  denied,  is  true,  and  that  the  capacities  must 
be  original  differences,  notwithstanding  the  arguments 
to  the  contrary  just  sent  forth.  But  the  truth  is  that 
they  are  not  quantitative  nor  qualitative  differences 
alone,  but  moments  of  development;  various  changes 
of  the  spirit  in  its  progressive  movement  can  be  seen  in 
both  quality  and  quantity.  The  spirit  is  a  unit  differing 
within  itself;  it  is  a  great  energy  and  power  which 


160  COROLLARIES 

assumes  diverse  and  opposite  forms,  because  it  is  both 
sense  and  reason,  instinct  and  will,  and  is  shown  as 
necessary  and  free,  as  moral  and  immoral,  as  just  and 
unjust,  as  impious  and  good.  These  forms  so  interpene- 
trate that  the  lower  are  contained  and  resolved  in  the 
higher;  so  representation  has  within  itself  sensation  as 
matter.  Thought,  in  its  turn,  comprehends  and  raises 
to  its  own  level  the  data  of  representation.  The  stages 
of  nature  are  not  similar  to  the  forms  of  the  spirit,  be- 
cause the  former  are  separate  entities.  Mineral,  vege- 
table, animal,  and  human  stages,  are  self-sustaining, 
although  the  vegetable  presupposes  the  mineral,  and  the 
animal  succeeds  the  vegetable,  and  man  develops  after 
all  of  them,  which  are,  nevertheless,  the  terms  of  evolution. 
§  65.  Spirit  and  the  Senses.  The  spirit  has  know- 
ledge and  will.  It  is  a  theoretical  and  practical  pro- 
cess. Aristotle  says  that  spirit  joins  with  sense, 
appetite,  knowledge,  and  action.  The  psychological 
disposition  of  the  spirit  as  sense,  or  as  the  cognitive 
principle,  is  the  nervous  system  which  transmits 
impressions;  the  muscular  system  serves  the  spirit 
as  appetite  or  volitive  principle,  in  which  there  is  a 
contraction  when  an  impression  is  transmitted  to  the 
nerves.  Sense  is  first  indeterminate  because  it  does  not 
know  anything  but  life  or  its  presence  in  the  whole  organ- 
ism and  lacks  special  organs.  It  is  intimately  connected 
with  some  of  the  nerves  and,  therefore,  grasps  the  general 
conditions  of  the  body,  such  as  oppression,  weariness, 
vivacity,  heat,  and  cold,  inasmuch  as  they  refer  to  the 
economy  of  life.  This  property  or  indeterminate  sense 
of  self  is  called  vital  by  Zimmerman,  while  by  Drobisch 
it  is  referred  to  as  the  barometric  sense.  Rosmini  calls 
it  fundamental,  because  it  is  found  in  all  of  the  sensations, 
which  are  its  methods.  Who  can  hear  any  sound  or  see 
any  sight  without  feeling  himself  alive?  Bain  and  some 


SPIRIT  AND  THE  SENSES  161 

modern  psychologists  are  forced  to  recognize  it  under 
the  name  of  organic  life,  something  having  a  continual 
and  optional  action  and  capable  of  noting  the  state  of  the 
muscles,  nerves,  circulation,  respiration,  and  digestion. 
The  primary,  indeterminate  sense  becomes  determinate 
and  is  specialized  in  the  muscular,  tactile,  auditory,  vis- 
ual, olfactory,  and  gustatory  sensations.  The  muscular 
sensations  are  connected  with  the  condition  of  the  muscles 
and  teach  us  the  different  degrees  of  tension  in  the  organs 
in  motion,  and  the  measure  of  their  force.  They 
consist  of  the  pleasure  or  pain  growing  out  of  the  exercise 
of  the  organs  themselves  and  always  have  regard  to 
motion.  They  are  elementary  and  enter  into  every  kind 
of  sensation,  because  it  is  not  possible  to  feel  without 
motion.  They  differ  from  the  tactiles  because  the  latter 
presuppose  contact  with  external  stimuli.  Bain  con- 
nects them  with  a  spontaneous  and  primitive  activity 
which  comes  from  within  and  is  not  a  reaction  against 
external  stimuli.  He  states  that  the  brain  not  only  obeys 
impulses  but  is  gifted  with  spontaneous  action,  and  that 
a  nervous  influence,  transmitted  through  the  motor 
nerves  and  exciting  the  muscles,  is  a  product  or  automatic 
method  of  the  brain  itself  under  the  organic  stimuli  of 
nutrition.  Bain  furnishes  proof  of  his  statements,  and 
Stuart  Mill  praises  him  for  having  bridged  a  large  gap 
in  the  psychology  of  association.  This  lacuna  was  the 
denial  of  a  primitive  energy  within  ourselves  which  is  not 
the  echo  of  the  external  world.  Certainly  it  is  not  pos- 
sible to  derive  sensation  from  impression,  because  the 
former  is  in  the  appreciation  of  the  latter,  as  we  have 
said  above,  and  because  in  feeling,  there  is  always  an 
original  spontaneity  which  transforms  the  action  of  the 
stimuli,  limits  their  force,  and  sometimes  is  not  influenced 
by  them,  leaving  them,  as  it  were,  standing  apart. 
Such  energy  is  psycho-physical  — •  of  this  there  can  be 


162  COROLLARIES 

no  doubt.  In  fact,  the  proper  character  of  psychic 
activity  is  that  which,  excited  by  stimuli,  produces  a 
new  fact  whose  causes,  from  a  point  of  view  of  quantity 
or  quality,  are  not  found  in  the  external  world.  Psychic 
activity,  consequently,  is  not  comparable  to  an  overflow 
because  of  superabundance,  and  it  is  what  completes  the 
transformation  of  the  stimuli  when  they  have  done 
their  part  towards  the  psycho-physical  process.  All 
these  sensations  —  muscular,  tactile,  auditory,  visual,  ol- 
factory, and  gustatory  —  can  either  be  united  with  the 
vital  sense  or  not;  if  they  are  united  with  it,  they 
increase  its  force;  if  they  are  not  united,  they  impede 
its  development.  In  the  first  case,  the  sensation  is 
pleasant;  in  the  second,  disagreeable;  pleasure  and  pain 
give  the  tone  to  our  sensations. 

§  66.  Consciousness.  Let  the  sensations  be  external, 
that  is,  caused  by  stimuli  operating  outside  the 
body;  let  them  consist  of  pleasure  or  pain,  and 
they  will  always  partake  of  the  nature  of  sense 
which  cannot  get  beyond  the  individual  as  its  ter- 
minal, and  which  always  concentrates  in  a  particular 
and  temporary  affection  of  a  sense  without  being  able 
to  distinguish  it  from  sensation  in  general.  Sensa- 
tion is  always  an  indistinct  whole  of  actively  sensible 
beginning  and  passively  felt  cause.  If  distinction 
appears,  sense  is  resolved  and  gives  place  to  conscious- 
ness which  alone  is  fitted  to  distinguish  subject  from 
object  and  to  refer  the  latter  to  the  former.  The  cause 
becomes  the  object,  a  quid  placed  before  subject 
when  consciousness  is  shown.  Psychical  activity  arises, 
stimulated  by  its  own  sensitive  acts,  above  the  com- 
binations of  sensation  and  is  not  exhausted  in  them. 
The  first  form  of  consciousness  is  a  bare  feeling  of  dif- 
ference in  the  subject  which  is  conscious  of  itself  through 
a  sense  terminus  and  a  reference  of  the  object  to  the  sub- 


CONSCIOUSNESS  163 

ject  that  is  called  sensible  but  which  must  not  be  con- 
fused with  pure  sense  indistinct  in  itself.  In  this  grade 
of  psychical  activity  lies  the  first  product  of  the  mind 
in  that  the  matter  gathered  by  our  sensitive  impressions 
is  formed  by  the  faculty  and  converted  from  a  sensitive 
cause  into  an  understood  object.  Knowledge,  therefore, 
is  derived  from  something  distinct  from  itself,  which  is 
not  simple  impression  or  sensation,  because  its  object 
is  not  transferred  from  without  into  the  spirit  but 
consists  of  an  intellectual  formation.  Its  possibility 
lies  in  some  a  priori  original  conditions,  as  Kant  said. 
The  necessity  of  a  spontaneous  and  original  psychological 
principle  in  the  explanation  of  the  fact  of  cognition  has 
not  escaped  the  great  empiricists.  Campanella  thinks 
that  knowledge  of  external  things,  called  "addita," 
must  rest  on  "cognitio  abdita,"  that  is,  on  the  certainty 
of  being,  power,  will,  and  knowledge.  Locke  disagrees 
with  the  innatism  of  Descartes  but  admits  innate  atti- 
tudes and  natural  constituent  capacities  of  the  spirit. 
Spencer  recognizes  an  hereditary  active  preformation 
in  the  mind,  and  that  mind  is  not  really  explicable  with- 
out it,  because  habit  is  not  formed  and  transmitted  to 
descendants.  It  has  been  shown  by  not  a  few  psychol- 
ogists that  consciousness  cannot  be  an  association  of 
states,  for  these  states  must  either  be  considered  as 
belonging  to  the  entities  whose  states  they  are,  and  in 
such  a  case  the  result  is  a  sum  and  not  a  unit,  or  they  must 
be  regarded  as  convergent  in  their  action  towards  a 
point  without  themselves,  and  then  the  reason  and 
manner  of  the  convergence  would  have  to  be  understood 
and  the  point  of  convergence  known.  On  such  a  hypoth- 
esis, there  would  be  a  complex  state,  which  could  not 
be  a  state  proper,  because  it  would  lack  the  necessary 
unity.  For  the  phenomenists  and  pure  associationists, 
the  ego  is  not  a  reality  but  a  complexity  of  states  bound 


164  COROLLARIES 

together  in  various  relations.  Neither  can  conscious- 
ness be  the  function  of  any  point  of  the  brain  because 
matter  is  of  itself  complex  and  cannot  be  conceived 
of  as  a  unit  nor  can  the  sum  of  things  be  so  considered,  — 
granted  that  it  can  be  conceived  of  at  all.  Lacking  the 
point  to  which  the  forces  are  applied,  consciousness 
cannot  be  assimilated  to  the  single  result  of  concurrent 
forces  or  to  the  electric  current  generated  by  action  and 
reaction  of  several  substances,  because  it,  too,  is  composed 
of  the  particles  of  a  fluid.  Consciousness  studied  in  its 
essence  and  in  its  primitive  simplicity  as  an  act  of  distinc- 
tion or  reference  is  not  born  from  the  sentiment  of  the 
organism  or  synthesis  or  from  association  and  necessity. 
Ribot  thinks  that  the  ego,  the  sum  of  the  actual  states  of 
consciousness,  is  in  its  continuity  of  time  the  product  of 
memory,  depending  fundamentally  upon  the  complexes 
of  sensations  provided  by  all  the  parts  of  the  body. 
Consciousness  in  his  mind  changes  by  reason  of  the  rapid 
or  slow  variations  of  such  sentiment,  hence  cases  of  the 
successive  formation  of  the  ego,  of  the  disintegration  of 
the  ego  into  different  egos,  the  origin  of  the  pathological 
phenomena  of  double  consciousness.  Some  speak  of  a 
new  state  of  the  brain  cells  which  have  the  virtue  of 
making  a  diverse  ego  appear,  but  Ribot  and  others, 
(writes  Masci,  in  his  book  "Coscienza,  Volonta,  e 
Liberta,")  do  not  agree  that  their  theories  can  be  applied 
to  formed,  developed,  concrete,  and  individual  con- 
sciousness and  not  to  the  original  form  of  consciousness. 
Certainly  the  sense  of  self,  of  synthesis,  always  supplies 
new  material  or  content  to  consciousness,  which,  however 
mute,  is  together  with  memory  the  foundation  of  per- 
sonal identity  expressed  in  "ego  qui  quondam."  With- 
out doubt  the  concrete  individual  ego  has  a  history. 
It  presupposes  a  long  and  complicated  succession  of 
states  which  imply  association,  memory,  and  mutations 


REPRESENTATION  165 

of  sensibility.  The  simple  act  of  distinction  and  ref- 
erence, however,  does  not  emanate  from  impression  or 
sense  and  is  independent  of  memory  and  the  recognition 
of  the  sense  termini.  For  memory  itself  presupposes 
the  unity  of  knowledge  and  the  act  of  reference,  because 
recollection  is  not  possible  without  reference.  Con- 
sciousness in  its  elementary  form  is  empty;  it  is  the 
visive  internal  centre  to  which  psychical  phenomena 
belong  and  through  which  they  are  recognizable  and 
appear  through  comparison. 

§  67.  Representation.  When  an  impression  and 
physical  cause  are  withdrawn  the  sensation  does  not 
disappear  but  is  preserved  in  the  mind  and  can  be 
reproduced.  Reproduced  sensation  is  representation. 
It  is  known  that  similar  representations  are  based  on 
a  single  representation.  The  contrary  are  elided  and 
the  different  ones  form  groups.  Elision  is  the  retire- 
ment of  the  weaker  representation  to  the  back  of  the 
mind,  from  which  it  comes  forth  when  it  is  reinforced 
by  a  new  one  either  like  it  or  opposed  to  it,  but  coexistent 
in  space  or  time.  Representations  are  evidently  forces, 
and  we  should  not  be  surprised  that  they  are  subject  to 
the  laws  of  mechanics.  Representation  is  derivative 
as  the  reproduction  of  a  sensation,  and  so  representative 
consciousness  or  the  second  form  of  consciousness,  in 
which  the  external  object  is  the  image  of  something  with 
given  properties,  is  derivative,  although  the  object  is  a 
simple  existing  quid  and  nothing  else  for  sensible 
consciousness,  the  most  elementary  and  poorest  of 
consciousnesses.  Psychical  activity  is  shown  in  this 
field  with  the  power  of  directing  the  force  of  our  represen- 
tations, a  proof  that  reproduction  is  not  voluntary.  It 
controls  when  the  mind  separates  the  psychological 
associations  from  representations  founded  on  extrinsic 
and  accidental  combinations,  and  gives  them  their 


166  COROLLARIES 

logical  relation.  Abstraction  is  the  act  of  separation  or 
isolation  of  a  characteristic  of  a  common  quality  from 
several  particular  representations.  Thus,  the  common 
image  or  abstract  universal  is  formed,  of  which  we 
have  spoken  before.1  Language  is  intimately  con- 
nected with  the  image  or  common  representation,  which 
is  intermediate  between  the  singleness  of  the  sensation 
and  the  true  and  effective  universality  of  the  ideas.  A 
word  is  a  phantastic  universal  or  representation,  because 
the  sound  of  which  it  consists  is  made  to  indicate  a 
given  property  of  something,  a  property  which  recalls 
to  the  mind  the  whole  thing  with  its  other  characteristics. 
Grimm,  Curtius,  Steinthal,  and  Max  Miiller  give  this 
definition  and  agree  in  recognizing  the  representative 
virtue  of  words.  By  means  of  words,  a  picture  of  the 
ever  changing  nature  of  objects  is  attained.  The  mind 
can  thus  rise  from  the  sphere  of  representation  to  that 
of  thought.  The  conversion  of  the  image  into  a  con- 
cept is  quite  easy  when  the  image  is  not  absolutely  fugi- 
tive, but  is  connected  with  a  sound.  The  predominance 
of  the  original  activity  of  the  mind  arises  in  the  structure 
of  a  language,  because  conjunctions,  prepositions,  and 
adverbs  express  relations  that  are  not  born  of  impres- 
sions or  representations,  as  nouns  and  verbs,  but  con- 
stitute the  formal  and  categorical  element  of  language. 
§  68.  Thought.  Thought  emerges  from  representa- 
tion. Knowledge  advances  and  becomes  intellectual.  By 
going  deep  and  plunging  its  searching  look  into  things,  it 
conceives  necessity  and  universality.  The  object  of  knowl- 
edge and  mind  is  universality.  No  longer  phantastic, 
imaginative,  and  shifting,  but  that  in  which  the  essence 
is  understood,  the  universal  is  the  combination  of  all  the 
qualities  and  condition  of  phenomena,  without  which 
phenomena  could  not  exist.  There  is  still  progress  in 

1C/.  §  32,  ante. 


THOUGHT  167 

this  form,  because  the  object  is  not  the  bare  quid, 
of  which  the  existence  alone  is  known,  nor  the  thing 
with  ever  changing  .  properties.  The  intellectual,  as 
well  as  the  perceptive  or  representative  knowledge,  is 
derivative.  Originally,  in  all  its  phases,  there  was  only 
the  difference  between  subject  and  object,  a  distinction 
which  did  not  lie  in  impression  and  sensation.  In  such 
a  state,  the  synthetic  activity  of  the  spirit  gained 
theoretically  its  highest  development,  since  the  know- 
able  object  was  understood,  and  since  representation 
cannot  show  necessity  and  universality;  it  deals  with 
contingent  or  particular  objects.  There  are  logical 
conceptions  to  which  no  sensible  or  representative 
matter  corresponds:  for  example,  substance  and  cause. 
It  has  been  pointed  out,  therefore,  that  all  their  value 
lies  in  their  form  alone  and  that  they  can  be  likened  to 
algebraic  signs  which  do  not  express  quantity,  but  its 
function.  It  is  not  possible,  says  Locke,  to  obtain  the 
conception  of  substance  from  experience,  because  we 
conceive  only  the  methods ;  substance  is  a  mere  abstract 
idea,  a  collection  of  methods.  Reality,  Hume  holds, 
shows  facts  joined  and  not  necessarily  connected. 
The  conception  of  cause  can  only  be  formed  through 
habit.  Locke  and  Hume  are  right  in  showing  that  the 
two  categories  of  substance  and  cause  cannot  arise 
from  experience,  but  they  are  wrong  in  exchanging 
substance,  which  is  an  object  thought  of  as  an  intrinsic 
mass  of  qualities,  for  a  simple  collection,  and  what  is 
habitual  for  what  is  logically  necessary.  Bain  has 
recourse  to  instinct  as  denned  by  the  Scotch  school,  an 
inexplicable  and  mysterious  principle,  as  a  basis  for 
causality.  These  categories  of  purely  logical  concepts 
are  not  innate,  not  beautiful  and  formed  in  the  mind, 
but  are  original  and  constitute  the  active  foundation, 
the  systems  of  the  functions  of  the  mind  itself,  which, 


168  COROLLARIES 

stimulated  by  impression,  produces  and  functionizes  ac- 
cording to  its  conditions  and  laws  and  makes  a  first 
acquirement  without  which  no  other  acquirement  is 
possible.  The  cognitive  act,  if  not  impression  or  passion 
transferred  by  the  stimulus  of  the  mind,  is  a  primitive 
acquirement,  the  conversion  of  sensation  into  an  under- 
stood object,  the  comprehension  of  the  object  and  the 
formation  of  experience  as  cognition. 

§  69.  Origin  of  Mind  according  to  the  Positivists. 
Some  positivists  say  that  it  is  an  error  to  presuppose 
an  always  constant  organization  of  mind,  and  not  to  ad- 
mit that  necessity  or  universality  can  be  derived  from 
experience.  They  criticize  Kant,  recognized  by  them 
as  the  forerunner  of  scientific  metaphysics,  for  these  two 
opinions,  and  hold  that  the  a  priori  forms  are  explicable 
by  the  supra-individual  factor  of  experience  itself.  This 
factor  is  not  logical  activity  or  the  original  synthetic 
activity,  but  is  found  in  the  more  recondite  history  of 
psychics  and  human  culture.  The  apperceptive  func- 
tion of  thought,  according  to  them,  belongs  to  the 
knowledge  of  civil  man,  because  in  primitive  experience 
the  logical  factor  is  given  by  a  simple  process  of  organ- 
izing the  evidence  of  the  senses.  The  dualism  of  the  ego 
and  non-ego  is  not  original.  It  is  a  gradual  formation 
that  the  child  learns.  The  ego  is  nothing  more  than 
a  whole  by  coalization.  The  generative  elements  of 
experience,  says  Angiulli  in  the  book  cited,1  are  found 
in  events  anterior  to  the  distinction  of  the  ego  and 
non-ego,  that  is,  in  the  sphere  of  unconscious  experi- 
ence and  mentality.  The  problem  of  the  origin  of  mind 
is  that  of  the  origin  of  life.  The  first  element  of  experi- 
ence is  the  reaction  of  the  organic  substance  under 
stimuli.  This  reaction  or  irritability  is  fundamentally 
inseparable  from  sensibility  and  motion.  Irritability, 

1  "La  Filosofia  e  la  Scuola,"  cit.  §  53  ante. 


VARIATION  DEPENDS  ON  STIMULI       169 

sensibility,  and  mobility  are  intimately  connected  with 
nutrition  and  reproduction.  The  law  of  nutrition  is 
adaptation  and  that  of  reproduction  is  heredity.  They 
say  that  mind  is  the  capacity  of  an  organism  to  learn 
through  experience,  so  that  adaptation  to  external  relation 
becomes  gradually  selective.  The  second  element  is 
the  power  of  organic  matter  to  preserve  the  effects  of 
sudden  change  in  the  form  of  molecular  dispositions. 
Sensation  is  not  an  element  of  the  mind  unless  associated 
with  precedent  states.  It  has  a  power  of  assimilation, 
distinction,  a  kind  of  unconscious  judgment.  This 
assimilative  something  is  connected  by  the  nerve  groups ; 
it  is  established  by  the  experience  of  the  race  and  gen- 
erated by  the  same  nerve  organs  in  the  earliest  adapta- 
tions of  animal  life.  The  third  element  of  experience  is 
attention,  which  has  the  virtue  of  transforming  sensation 
into  perception,  consciousness  into  autoconsciousness, 
the  image  into  the  ideal. 

§  70.  Variation  Depends  on  the  Stimuli.  Following 
Angiulli,  who  is  the  most  lucid  interpreter  of  the  doc- 
trine in  question,  the  method  of  nutrition  is  psycho- 
logical, that  of  memory  is  psychical,  and  that  which 
governs  the  assimilation  of  external  excitements  is 
nervo-psychical.  This  is  the  energy  of  cerebral  centres 
with  a  directive  and  inhibitive  motion  by  which  the 
mental  acts  are  shown  to  us  as  the  effects  of  an  internal, 
not  external,  activity.  It  is  the  result  of  hereditary 
accumulations  which,  if  not  very  numerous,  give  the 
mind  a  greater  power  of  modifying  and  correcting 
existing  phenomena.  The  mental  faculties  are  formed 
by  the  aggregation  of  the  residuals  of  experience  which 
interact  to  create  organs,  functions,  and  capacities. 
The  capacities  produced  by  association  differ,  neverthe- 
less, in  quality,  because  we  see  even  in  the  sphere  of 
natural  entities  such  a  result  in  the  combination  of 


170  COROLLARIES 

several  elements  having  properties  different  from  those 
of  the  single  components,  as  Lewes  has  shown.  Experi- 
ence is  an  evolution  in  which  the  products  are  con- 
stantly different  from  their  components.  Psychological 
elements  are  mutable  unities  and  presuppose  in  their 
development,  especially  in  the  phase  of  their  abstraction, 
collective  and  historical  experience.  The  necessity  and 
universality  of  knowledge  are  based  on  the  equivalence 
of  a  fact  to  the  sum  of  its  factors.  The  impossibility  or 
inconceivability  of  the  contrary  has  always  had  its  base 
in  real  or  possible  experience.  We  must  explain  every- 
thing by  the  energy  of  the  stimuli,  because  the  differ- 
ences in  the  forces  and  qualities  of  entities  are  the  first 
causes  of  the  differences  in  the  structure  and  property  of 
our  senses.  The  eye  sees  light  because  it  is  a  product 
of  light.  There  exists  nothing  in  an  object  of  itself, 
because  what  appears  is  the  real.  In  the  subjective 
order,  the  thing  of  itself,  the  ego,  is  the  physiological 
function,  the  manifestation  of  cosmic  forces.  Fact,  law, 
and  cause  are  three  aspects  of  the  whole.  Fact  is  the 
sum  of  conditions,  law  is  the  fact  regarded  in  its  growth, 
and  cause  is  the  fact  considered  in  its  conditions.  The 
principle  of  cause  is  that  of  the  persistence  and  trans- 
formation of  forces.  Things  are  only  syntheses  of  prop- 
erties. Knowledge  of  things  is,  therefore,  real ;  relative 
in  its  realization,  absolute  as  a  whole.  One  cannot 
speak  of  relative  cognition  without  admitting  absolute 
cognition. 

§  71.  Dependence  of  Variance  in  Stimuli  is  Contrary  to 
Modern  Thought.  It  is  evident  that  the  above  theory  is  a 
form  of  purely  objective  empiricism  moving  on  the  prin- 
ciple that  it  is  the  res  which  gives  the  essence.  What  is 
internal  is  constituted  by  what  lies  without;  everything 
is  a  derivative  of  the  external.  Yet  by  reason  of  its  origin 
modern  empiricism  should  have  a  different  character  from 


THEORY  OF  KNOWLEDGE  171 

the  ancient  because  it,  together  with  the  principle  of 
idealism,  is  born  from  the  principle  of  subjectivity. 
There  can  be  no  more  doubt  that  modern  philosophy  is 
informed  on  such  a  principle  in  every  direction,  than 
that  ancient  philosophy  looked  always  to  natural  or 
ideal  objectivity.  Natural  objectivity  was  dominant 
before  Socrates;  the  philosophers  sought  truth  in  the 
natural  elements.1  From  Socrates  on,  truth  was  placed 
in  concepts  and  ideas  regarded  as  objects.  Modern 
empiricism  is  not  simply  impressionism  as  Spaventa 
shows,  because,  although  he  admits  with  Campenella 
a  "cognito  abdita,"  he  recognizes  with  Locke  certain 
natural  attitudes  of  the  subject,  and  conceives  with 
Condillac  of  sensation  as  an  act  of  internal  energy,  and 
follows  the  a  priori  of  the  Helmholtzian  laws  of  causal- 
ity with  the  logical  and  appetitive  activity  of  Wundt, 
and  with  the  synthetic  activity  of  Riehl's  earlier 
works.  On  the  other  hand,  Cartesian  idealism  and 
transcendental  idealism  prove  clearly  the  dominance 
of  subjectivity. 

§  72.  Criticism  of  the  Positivist  Theory  of  Knowledge. 
The  theory  set  forth  in  the  last  paragraph  confuses 
experience,  which  is  knowledge,  complete  cognition, 
apperception,  and  certainty  with  feeling  and  living  and 
even  with  simple  organic  irritability,  thus  reducing  it 
to  a  mere  impression.  It  denatures  consciousness, 
because  it  speaks  of  an  unconscious  experience,  dis- 
cernment, and  judgment.  An  unconscious  experi- 
ence is  not  an  experience  or  a  full  cognition,  but  a 
knowledge  which  does  not  know;  an  unconscious  dis- 
cernment is  not  an  act  which  distinguishes  object  and 
subject  and  refers  the  latter  'to  the  former.  It  is 
not  a  judgment.  Experience,  comprehension,  discern- 
ment, and  judgment  always  presuppose  consciousness,  but 
can  be  unaccompanied  by  reflection.  There  are  primitive 

lCf.     Intro,  p.  1. 


172  COROLLARIES 

and  spontaneous  judgments,  and  there  are  secondary  and 
reflective  judgments.  Primitive  judgments  contain  the 
act  of  distinction  and  reference  in  which  lies  conscious- 
ness; the  secondary  are  the  children  of  reflection  which 
necessarily  implies  the  act  of  which  we  speak.  All  judg- 
ments are  conscious,  but  all  are  not  reflective.  We 
must  not  confuse  reflection  with  simple  consciousness, 
otherwise  we  will  fall  into  error.  Only  in  the  mech- 
anism of  reproduction  can  we  allow  unconscious  con- 
ceptions and  judgments  in  the  sense  of  already  formed 
acts  of  consciousness,  which  have  fallen  into  the  ob- 
scure background  of  the  mind  and  lie  there  with  a 
tendency  to  come  forward  upon  any  of  those  occasions 
of  necessity  which  are  tested  in  psychology.  There  is  an 
unconscious  psychicality  which  embraces  sensitive  and 
instinctive  phenomena,  and  those  of  revivication  which 
form  the  indistinct  substratum  of  the  intellectual  spirit 
of  Aristotle.  But  we  should  not  confuse  experience  as 
an  act  of  preservation  of  sensation  with  an  under- 
stood object  as  a  form  of  knowledge.  Experience 
alone  can  be  one  with  conscious  psychicality.  Now  the 
theory  above  indicated  carries  the  internal  acts  of  man 
into  the  animal  and  attributes  those  of  the  animal  to 
man;  and,  always  retrogressive,  it  comes  to  the  physical 
properties  of  matter,  the  a  priori  of  positivism,  and 
reaches  the  limits  of  materialism. 

§  73.  Knowledge  is  Subjective.  Spaventa  sounds  a 
grave  warning  in  his  posthumous  work  "  Esperienza 
e  Metafisica,"  that  in  all  this  genealogical  theory, 
knowledge  is  considered  as  an  effect  of  some  kind, 
as  a  phenomenon  among  phenomena;  while  it  is 
the  condition  of  all  phenomena,  their  principle,  in 
fact,  it  is  phenomenality  itself.  If  the  world  of  phe- 
nomena, that  is,  the  real  and  relative  world,  is  that  of 
representations,  one  cannot  find  the  origin  of  knowledge 


KNOWLEDGE  IS  SUBJECTIVE  173 

which  is  representation,  because  to  find  the  origin  of  it 
means  to  go  back  to  a  phenomenon  from  which  it  is 
derived.  And  phenomena  are  representation,  from 
which  it  follows  that  knowledge  and  representation  are 
not  derivatives,  but  are  presuppositions  if  one  wishes 
to  derive  them  from  phenomena,  and  presupposi- 
tions also,  even  if  one  derives  them  from  phe- 
nomena or  from  combinations  of  physical  and  sensible 
elements.  Things  of  themselves  are  not  phenomena; 
they  are  transcendental  and  not  knowable,  the  combina- 
tions of  elements  which  are  natural  realities  and  not 
representations  or  simple  facts  of  sense,  and  cannot 
produce  representation.  Thought  and  knowledge,  experi- 
ence, perception,  and  certainty  become  inexplicable  in  the 
hypothesis  of  an  absolute  posteriorism.  From  this 
arises  the  new  objective  empiricism  which  regards  experi- 
ence and  even  irritability  as  a  kind  of  basis  for  external 
stimuli,  as  a  reaction  of  the  subject  which  develops 
its  nature  and  constitution.  Volens  nolens,  modern 
empiricism  should  be  informed  on  the  principle  of  sub- 
jectivity, from  which  it  tries  to  separate.  Knowledge 
and  experience  are  double  in  appearance  but  are  funda- 
mentally one,  because  the  thing  is  present,  apparent  to  the 
ego,  and  would  not  be  able  to  be  present  and  appear  to 
the  ego,  if  the  ego  was  not  apparent  to  itself.  Nothing 
appears  to  me  if  I  do  not  appear  to  myself.  In  sensa- 
tion, I  do  not  feel  anything  if  I  do  not  feel  myself ;  in 
knowledge  I  know  nothing  if  I  do  not  know  myself  in 
what  I  know.  I  do  not  know  without  being  present 
with  my  nature  in  the  object  of  my  knowledge.  From 
this,  it  is  seen  that  the  ego  is  not  without  sensation,  and 
that  it  cannot  exist  after  sensatton  disappears,  because 
I  feel  nothing  if  I  do  not  feel  myself.  Thought  is  the 
same;  if  it  is  not  original,  it  cannot  develop.  The  a 
priori  here  is  the  priority  of  myself,  the  apperceptive 


174  COROLLARIES 

unity  of  original  synthesis,  and  the  energy  which  re- 
duces the  multiplicity  of  impressions  to  a  single  point. 
This  a  priori  is  in  every  form  of  knowledge,  even  the  most 
elementary  and  poor.  It  belongs  to  man  in  that  he  has 
experience  and  knowledge,  in  that  it  is  certain  and  does 
not  belong  to  civil  man  alone,  as  the  empiricists  hold. 
The  accumulation  of  successive  experiences  upon  which 
they  insist,  the  hereditary  a  priori,  is  possible  exclusively 
through  such  an  originality  of  the  ego,  the  basis  of 
Kantism.  Such  accumulation  constitutes  the  concrete- 
ness,  the  richness  of  knowledge,  but  knowledge  has  always 
that  double  appearance  which  is  single  in  fact,  that 
original  distinction  between  subject  and  object  about 
which  we  have  spoken.1  The  object  is  not  the  end  of 
sensation,  it  is  the  product  of  thought;  it  is  born  from 
the  conversion  of  the  sensation  into  understanding. 
Reality,  objectivity,  and  truth  are  not  found  in  blind 
unformed  sensation,  but  in  the  sphere  of  knowledge. 
If  reality  lay  in  fleeting,  variable,  and  contradictory 
sensation,  we  would  have  to  give  up  the  search  for  truth. 
§  74.  Knowledge  is  "a  Priori."  It  has  been  stated 
that  experience  is  evolution  in  which  the  products  are 
dissimilar  from  the  nature  of  the  components,2  without 
reflecting  that  by  such  a  statement  one  denies  the  uni~ 
versal  principle  of  the  causal  equation.  The  effect,  the 
knowledge,  would  be  conceived  of  as  something  absolutely 
different  from  cause,  that  is,  from  the  combination  of 
elements  of  natural  reality  and  the  acts  of  the  senses. 
The  effect  cannot  be  conceived  of  as  something  abso- 
lutely different  from  the  cause,  because  there  would  be 
no  connection  between  them.  It  would  not  be  an  effect. 
Neither  can  it  be  regarded  as  absolutely  identical  with 
the  cause,  because  it  would  be  only  the  cause  repeated, 

1  Cf.  §  66  ante. 
*Cf.  §  53  ante. 


NOUMENON  THOROUGH  PHENOMENON  175 

and  in  this  way,  too,  there  would  be  no  result.  Causality 
is  not  abstract  difference  or  abstract  identity,  but  both 
together,  an  a  priori  synthesis.  If  experience  is  admitted 
to  be  the  result  of  the  sum  of  the  indicated  combination, 
the  heterogeneity  of  the  result  can  be  reconciled  with  the 
continuity  of  the  elements  only  by  explaining  in  some 
manner  how  thought  is  contained  in  what  is  not  thought, 
how  light  emerges  from  blackness,  how  the  logical  con- 
nection, necessity,  and  universality  are  created  by 
mechanical  combination,  by  physiological  and  psycho- 
logic association,  by  contingency  and  particularity.  The 
necessary  connection  of  the  elements  and  factors  of  things, 
and  the  impossibility  of  the  contrary  shown  by  every  real 
and  possible  experience  are  not  derived  from  the  aggre- 
gation of  the  residues  of  experience.  Certainly  these 
conceptions  presuppose  empirical  data,  but  they  are  not 
formed  without  the  original  activity  of  thought,  which  is 
the  base  of  knowledge.  Full  and  true  knowledge  of  a 
thing  is  had  when  the  mind  understands  its  necessity. 
Necessity  understood  is  the  very  absoluteness  of  knowl- 
edge to  which  some  positivists  to-day  are  tending. 
Necessity  and  absoluteness  exceed  the  confines  of 
sensible  data  of  the  experimental  method  and  of 
aposteriorism. 

§  75.  Noumenon  is  Knowable  through  Phenomenon. 
It  is  objected  that  the  reality  of  knowledge  must  fail 
if  it  is  admitted  that  knowledge  expresses  the  nature  of 
the  knower  and  is  therefore  subjective  and  relative.  If 
the  essence  of  things  depends  upon  our  representation, 
things  are  what  they  appear  to  us,  —  they  become  phe- 
nomena. In  other  words,  the  thing  is  lost  in  its  repre- 
sentation, and  the  theory  of  Berkeley  is  reinstated. 
Is  it  not  better  to  follow  the  path  shown  by  Comte,  and 
sink  representation  in  the  object?  The  objection  arises 
from  a  false  conception  of  knowledge  which  puts  it  in  the 


176  COROLLARIES 

vision  of  the  object  considered.  Knowledge  does  not 
lie  in  seeing  an  object  which  is  without  us,  but  in  trans- 
forming what  the  sense  conveys  to  the  understanding; 
it  is  the  projection  and  distinction  of  the  object  produced 
by  the  mind.  The  existence  of  things,  objectivity,  and 
reality,  are  one  with  their  image  in  the  mind.  Things 
are  true  only  in  cognition,  and  what  is  supposed  to  be 
their  existence  before  and  without  cognition  is  not  their 
true  essence;  it  is  nothing.  A  thing  of  itself  without 
relation  to  knowledge,  a  thing  which  can  never  stimulate 
the  subject  and  appear,  cannot  be  said  to  exist.  It  is 
right  to  speak  of  a  thing  of  itself  in  that  it  is  knowable, 
that  is,  that  it  can  appear  to  the  mind,  even  if  it  does 
not  appear  and  does  not  make  itself  known.  This  kind 
of  thing  of  itself,  which  Kant  even  admits,  makes  the  per- 
petual possibility  of  phenomena,  sensation,  representa- 
tion, and  knowledge.  It  is  the  thing  transcendental 
in  itself,  not  simply  empirical  existence  or  appearance, 
nor  mere  ultra-empirical  existence  which,  from  its  nature, 
takes  all  reality  from  the  object.  The  mistake  of  Spencer 
lies  in  the  conception  of  a  thing  by  itself  without  referring 
it  to  the  mind.  His  absolute  unknowable  is  gnostical, 
add  some  positivists,  because  it  is  a  thing  of  itself  with- 
out any  relation  to  the  mind  and  therefore  has  no  rea- 
son of  existence.  In  this,  it  is  like  the  religious,  mythical 
absolutes,  and  the  metaphysical  absolute  (if  self-sufficient 
and  self-ruled),  for  they  become  transcendental  principles. 
These  positivists  recognize  three  kinds  of  absolutes.  The 
methodological  (or  system  of  the  ultimate  concepts  of 
the  sciences),  the  cosmic  absolute  (or  the  world  as  a 
whole),  and  the  objective  absolute  (or  the  perpetual 
possibility  of  sensation  and  representation) .  They  recog- 
nize the  absolute  in  a  certain  sense,  they  admit  meta- 
physics, but  only  if  scientific  and  experimental ;  and  here 
the  hated  and  abhorred  metaphysics  rise  again  to  aid 


NOUMENON  THOROUGH  PHENOMENON  177 

positivism  itself  in ,  its  critical  phases.  Certainly  the 
existence  of  a  real  and  intimate  supreme  principle  cannot 
be  denied  when  philosophy  is  sought  to  explain  the  gen- 
eral scheme  of  the  world.  There  are  some  who  wish 
to  find  this  principle  in  a  series  of  laws  always  more  com- 
prehensive and  universal,  and  there  are  some  who  seek 
it  in  a  series  of  forces  or  causes,  or  of  ends  and  in  the  mind. 
Denying  the  possibility  of  knowledge  of  the  absolute, 
some  say  that  the  ultimate  law  and  end  cannot  be 
known.  By  regarding  only  the  series  of  law,  one  does  not 
see  the  cause;  by  limiting  the  attention  to  a  series  of 
forces  or  causes,  one  cannot  see  the  end.  The  absolute, 
should  include  in  itself  law,  cause,  and  mind,  if  it  is  a 
true  absolute.  Spaventa  says  that  ultimate  law  is 
cause,  ultimate  cause  is  end,  and  ultimate  end  is  mind. 
He  cites  Bruno  on  this  subject  to  the  effect  that  "the 
pursuit  of  the  absolute"  is  to  be  made  by  "motion  not 
physical  but  metaphysical  going  round  by  the  steps  of 
perfection  and  coming"  thus  "to  the  infinite  centre." 
By  an  indefinite  direct  line  one  will  never  reach  the 
absolute. 


178  PRACTICAL  FOUNDATIONS 


CHAPTER  VI 

PRACTICAL  FOUNDATIONS  OF  THE  DEDUC- 
TIVE IDEA  OF  LAW.  — DEVELOPMENT 
AND  DIVISION 

INSTINCT,  DESIRE.  AND  WILL.  —  CAPRICE  AND  MORAL  FREEDOM. 
—  THE  CONSTANCY  OF  HUMAN  ACTS  AS  SHOWN  BY  STATISTICS.  — 
END  OF  MAN  AND  HAPPINESS.  —  HUMAN  HAPPINESS  AND  THE 
LAW.— THE  IMPERATIVE,  PROHIBITIVE,  AND  PERMISSIVE  FORMS 
OF  LAW.  — LAW  AS  A  PRINCIPLE  OF  COERCION  OR  COEXISTENCE 
AND  OF  HARMONY.  —  THE  RATIONAL  TRI-DIVISION  OF  LAW.  —  THE 
DIVISION  OF  GAIUS. 

§  76.  Other  Attributes  of  the  Mind.  The  mind  has  not 
only  knowledge  but  appetition,  desire,  and  will.  It  is 
a  theoretical  and  practical  process.  The  muscular 
system  is  physiologically  fitted  for  the  practical 
process.  A  muscular  contraction  or  reflexive  action 
follows  every  impression  transmitted  by  the  nerves, 
and,  furthermore,  it  is  not  the  simple  mechanical  effect 
of  the  blow  received,  but  has  its  form  and  measure 
in  the  excitement  of  the  organs.  The  impression  is  not 
sensation  and  the  reflexive  action  is  not  appetite.  Appe- 
tite is  a  state  of  psychical  activity,  in  that  it  is  a  tendency 
towards  pleasure  and  aversion  to  pain.  Reflexive  action 
is  a  physiological  movement  and  is  not  to  be  confused 
with  a  tendency.  The  appetite  in  its  turn  transforms 
the  stimuli  and,  considered  in  its  indeterminateness,  is 
the  same  vital  and  fundamental  sense  and  the  same  sen- 
sitivity in  motion  of  which  Rosmini  speaks.  It  is  sen- 
sation become  practical  activity. 


INSTINCT  179 

§  77.  Instinct.  The  first  concrete  and  particular  ap- 
pearance of  appetite  is  instinct,  a  tendency  unconscious 
of  its  ends  and  means..  Its  end  is  the  attainment  of  what 
is  best  for  the  satisfaction  of  the  needs  without  precedent 
experience.  Many  biologists  and  psychologists  derive 
instinct  from  the  adaptation  of  animals  to  their  environ- 
ment begun  through  necessity  and  persisted  in  through 
useful  experience  and  later  become  a  hereditary  and  or- 
ganic custom  of  the  species.  It  is  certain  that  in  adapta- 
tion generally,  however  large  the  part  allowed  genealogical 
theories,  we  always  need  a  nature  in  the  plant  and 
animal  capable  of  being  influenced  by  external  circum- 
stances. Now  this  is  presupposed  by  custom  and  heredity ; 
it  is  resolved  into  an  intimate  and  original  force,  and  in 
our  case  into  a  preexisting  tendency  to  persevere  in 
pleasure  and  to  avoid  pain, — an  animal  property.  The 
hypothesis  of  a  "tabula  rasa"  is  to-day  abandoned  by 
the  empiricists  themselves. 

§  78.  Desire.  The  second  state  in  which  appetite  is 
developed  is  desire,  a  tendency  towards  a  representation 
which  attracts  the  mind.  In  desire  there  is  a  knowledge 
of  the  end  but  the  choice  of  means  is  lacking,  because  the 
relation  between  the  end  and  the  means  is  learnt,  not 
by  representation,  but  from  an  already  experimented 
association  of  our  internal  states  and  external  ob- 
jects through  reflection.  So  love,  differing  from  pas- 
sion, is  a  secondary  form  of  appetite  presupposing 
representation.  Love  is  a  lasting,  purposeful,  ob- 
jective appetite;  passion  is  equally  a  derivative 
state  because  it  is  referable  to  sentiment,  but  it  is 
a  momentary  desire  or  sudden  attack  and  is  not 
associated  with  calculation  and  has  no  thought  of  the 
object  which  has  excited  it.  On  the  contrary,  love 
implies  an  end  tenaciously  sought  with  constancy  of 
purpose.  It  always  looks  to  the  object,  and  is  like  the 


180  PRACTICAL  FOUNDATIONS 

river  that  gradually  overflows  its  banks  and  forms  a 
new  path  for  itself,  says  Kant,  while  passion  is  like  the 
water  that  suddenly  breaks  a  dyke  and  inundates  the 
land.  Love  is  an  attribute  of  man,  a  maxim  of  con- 
duct, an  end  tenaciously  sought.  Passion  is  common  to 
animals,  a  sudden  motion  of  feeling. 

§  79.  Will.  The  third  and  highest  state  of  appetite  is 
will,  which  is  considered  by  Aristotle  because  it  partakes  of 
reason  as  a  derivative  power,  originating  in  appetite  itself. 
In  will  or  rational  appetite  are  found,  according  to  him, 
the  determination  of  ends  and  choice  of  means.  There 
is  a  common  element  in  the  inferior  and  superior  appeti- 
tive faculties,  that  is,  in  instinct,  desire,  and  will.  This 
is  spontaneity,  a  principle  that  is  in  us  and  not  without 
us.  Now  in  instinct  the  end  is  immediately  before  us; 
it  is  not  joined  by  knowledge.  In  will,  on  the  other 
hand,  the  end  is  mediate.  It  is  meditated  upon  and  re- 
flected about  and  is  established  sometimes  as  a  necessary 
and  universal  determination  of  conduct.  The  end  is 
necessary  and  universal,  if  it  is  the  supreme  and  true 
human  end.  Aristotle  emphasizes  this  conception  as 
Fiorentino  points  out  in  "Lezioni  di  Filosofia,"  that 
there  is  no  deliberation  about  the  supreme  end,  but  that 
there  is  deliberation  about  the  means  which  are  in  our 
power,  that  is,  about  those  things  which  originate  in 
us.  Spencer  confuses  physiological  conditions  with 
psychical  activity  in  regarding  the  will  as  a  more  compli- 
cated and  slower  reflexive  action.  In  reflexive  action 
there  is  an  impression  which  is  followed  by  a  muscular 
contraction;  in  instinct  there  is  found  a  complexity  of 
impressions  coordinated  by  heredity  and  organic  custom 
with  a  sum  of  muscular  contractions;  in  will,  several  psy- 
chical states  are  connected  through  a  stimulus  and  enter 
into  a  struggle ;  the  one  that  prevails  is  said  to  be  the  one 
wished  for.  Instinctive  action  must  be  immediate  by 


CHARACTER  181 

the  effect  of  automatic  association,  and  voluntary  action 
mediate  and  often  sjow  because  there  is  a  struggle 
between  the  different  series  of  representation.  As  im- 
pression is  not  sensation,  thus,  as  we  have  said  before,1 
reflexive  action  is  not  a  tendency,  nor  is  it  inclination, 
aversion,  or  appetite.  Evolution  is  not  only  a  progress 
of  quantity  but  a  progress  of  more  perfect  qualification. 
According  to  Spencer,  between  reflexive  action  and  will 
there  is  exclusively  a  quantitative  difference  of  more  or 
less  complexity,  and  a  mechanical  difference  of  more  or 
less  speed.  On  the  other  hand,  if  the  conflict  of  internal 
states  is  governed  by  laws  of  mechanical  association  one 
could  never  explain  the  fact  (attested  by  experience 
as  Aristotle  pointed  out)  that  the  deliberation  about 
the  means  is  restricted  to  those  that  are  within  our 
power  to  adopt,  and  does  not  extend  to  other  things 
which  do  not  lie  within  our  power. 

§  80.  Character.  A  simple  tendency  is  the  immediate 
rebound  of  pleasant  or  painful  sensation  and  is  not  accom- 
panied by  knowledge.  Desire  or  appetite,  properly  so 
called,  contains  an  attempt  to  recall  a  psychical  state,  that 
is,  a  tendency  with  knowledge,  but  knowledge  in  mere 
appetition  is  the  spectator  of  an  energy  which  has  all  its 
being  in  the  exciting  object  from  which  it  takes  its  name. 
In  this  state  of  practical  activity  there  is  knowledge, 
but  deliberation  is  lacking;  impulse  and  emotion  pre- 
dominate. In  will,  on  the  other  hand,  knowledge  is 
active  as  reflection  and  reason  capable  of  arresting  an 
impulse  and  of  generalizing  and  submitting  the  objects 
of  desire  to  a  judgment  of  practical  objective  experience. 
It  differs  from  emotion.  Will,  observes  Masci,  begins 
always  as  an  act  of  inhibition  because  it  arrests,  elides, 
and  converts  the  force  of  impulse  into  ideation,  but 
reaches  fulfillment  in  an  inverse  process,  by  the  transfor- 

lCf.  §65  ante. 


182  PRACTICAL  FOUNDATIONS 

mation  of  ideation  into  impulse,  becoming  action.  In 
this  lies  the  difference  between  involuntary  and  volun- 
tary intention.  The  first  depends  upon  the  force  of 
representation  and  the  sentiment  which  it  excites.  The 
second  is  derived  from  reason  because  representation 
is  not  of  itself  strong  enough,  its  vigor  being  diminished 
by  the  act  of  inhibition.  Ribot,  in  "Les  Maladies  de 
la  Personalite, "  regards  will  from  the  three  points  of 
view:  as  the  power  of  impulse,  distinguished  from  the 
anterior  activities,  because  it  is  an  ideomotive  force; 
as  the  power  of  inhibition,  in  which  it  stops  motion 
either  by  the  creation  of  contrary  impulses  or  by  restrain- 
ing the  emotions,  through  fear;  and  as  the  form  of 
individual  reaction  expressing  the  intimate  nature  of  the 
subject.  The  principle  cause  of  volition  is  not  a  conflict 
of  motives,  but  character.  If  this  were  not  true,  the  men 
richer  in  ideas  would  be  the  more  irresolute.  Character 
is  the  psychical  revelation  of  the  organs  and  is  partly 
original  and  partly  derivative.  Now  this  theory  is 
identical  with  Spencer's  because  it  is  founded  on  the 
principle  of  evolution  and  considers  the  voluntary  phe- 
nomena as  cases  of  the  incoherence  between  excitement 
and  action.  But  it  includes  an  important  correction  of  the 
doctrine  of  the  English  philosopher, — the  recognition  of 
the  necessity  of  a  practical  subject  who  chooses  and  from 
whom  volition  emanates;  an  essentially  active  fact  which 
becomes  passive  if  you  conceive  of  it,  as  Spencer  did,  as 
a  result  of  a  conflict  of  motives.  A  phenomenon  so 
various  and  complex  as  will  cannot  be  explained  by  the 
conception  of  a  simple  incoherence.  For,  thus,  the  greater 
incoherence  would  make  the  greatest  resoluteness  out 
of  the  greatest  irresoluteness.  In  spite  of  the  need  of 
activity  revealed  by  Ribot,  his  will  as  a  power  of  inhibi- 
tion is  passive,  because  it  is  a  consequence  of  fear. 
True  active  voluntary  inhibition  controls  and  arrests 


CHANCE  A  RESULT  OF  CAUSALITY       183 

an  impulse  not  through  a  prevalent  emotion,  but  through 
the  dictates  of  knowledge  and  the  development  of  reason. 
In  substance,  Ribot  confuses  simple  appetition  with 
will  and  then  tries  to  form  character  independent  of 
the  latter.  Pathological  experience,  every  day  con- 
tributing valuable  data  to  the  study  of  psychology, 
shows  us  that  where  knowledge  is  lacking  or  is  simply 
a  spectator,  there  can  be  no  will;  and  that  will  decreases 
in  the  same  degree  that  knowledge  is  suspended  or 
inactive.  Voluntary  action  is  destroyed  by  lack  of  the 
power  to  convert  the  force  of  impulse  into  the  force  of 
ideation,  and  by  transforming  it  into  impulse.  Examples 
of  the  first  kind  of  impotency  are  found  in  all  the  cases 
of  irresistible  impulse,  unconscious  as  the  impulses  of 
epilepsy  and  hysteria,  or  conscious  as  the  rare  tendencies 
to  incendiarism,  homicide,  and  theft.  The  most  specific 
case  of  impotency  of  the  second  kind  is  aboulia,  in  which 
the  mental  faculties  are  sane,  the  mechanism  of  motion 
intact,  and  yet  the  will  of  those  attacked  by  this  malady 
cannot  reach  a  determination  except  under  intense  pain. 
§  81.  Chance  must  be  a  Result  of  Causality.  Will  is 
not  the  license  of  indifference  or  the  power  of  the  abso- 
lute initiation  of  a  series  of  acts.  It  is  not  determined 
without  motives.  The  principle  of  causality  demands 
a  continuous  series  of  antecedents  and  consequents  and 
applies  the  conception  that  similar  causes  and  identical 
conditions  produce  similar  results.  The  license  of  in- 
difference breaks  the  causal  chain.  It  is  an  element 
of  discontinuity.  It  does  not  presuppose  any  ante- 
cedents and  is  resolved  into  the  absurd  notion  of  the 
possibility  of  several  identical '  causes  productive  of 
dissimilar  results.  To  admit  that  the  infinite  progres- 
sion of  causes  and  results  should  stop  at  a  causa  sui  does 
not  mean  the  recognition  that  the  latter  is  determinate. 
The  causa  sui  may  be  internal  and  extrinsic  necessity. 


184  PRACTICAL  FOUNDATIONS 

The  fact  of  change  does  not  in  any  way,  even  partially, 
show  an  absolute  beginning  because  the  energies  are  pre- 
served and  persist,  merely  undergoing  a  transformation. 
The  heterogeneity  of  results  does  not  show  an  indiffer- 
ent power  but  rather  the  complexity  of  conditions  and 
causes  which  give  it  birth.  The  license  of  indifference 
is  casual  and  accidental  will  and  because  chance,  philo- 
sophically regarded,  has  a  cause,  casual  will  must  have 
one.  Chance  is  not  opposed  to  the  laws  of  causality 
but  expresses  a  coincidence  of  facts  whose  casual  series 
set  apart  can  be  considered  as  independent.  This  is 
the  doctrine  of  the  incidence  of  the  series  accepted  by 
many  philosophers  and  explained  by  Windelband  in 
"Die  Lehren  vom  Zufall."  He  writes  that  chance 
cannot  be  possible,  if  growth  forms  a  single  chain  in 
which  the  links  are  necessarily  joined.  But,  in  fact,  we 
see  a  great  number  of  threads  developed  which  touch, 
interlace,  and  cut  into  one  another  to  form  that  marvel- 
ous tissue  which  is  called  world  progress.  The  points  at 
which  threads  touch,  and  where  new  threads  constantly 
unite  with  them,  show  us  two  facts  that  coincide  in  time 
and  space  without  having  the  relation  of  cause  and 
effect.  Reasons  are  not  lacking,  according  to  Tocco's 
"II  Concetto  del  Caso  in  Aristotele,"  for  holding  that 
such  was  approximately  the  opinion  of  the  Stagirite. 
Aristotle  did  not  deny  that  every  result  must  have  its 
cause,  but  held  that  the  chain  of  causes  is  interrupted 
by  foreign  events  that  are  the  product  of  distinct  causes 
and  have  no  relation  of  causality  with  the  first  series. 
The  number  of  the  causes  of  these  accidentals  are 
indeterminate  because  the  number  of  threads  that  can 
affect  or  come  into  the  causal  chain  of  a  series  is  inde- 
terminable. Now  if  coincidence  is  a  fact,  like  every 
other  fact,  it  should  have  a  reason  for  existence.  Coin- 
cidences, therefore,  cannot  be  removed  from  the  juris- 


DEFINITION  OF  CHARACTER  185 

diction  of  the  laws  of  causality,  and  neither  can  the  casual 
will.  It  is  repugnant  to  the  mind  to  admit  an  empty 
and  indeterminate  activity,  a  power  of  willing  and  not 
willing,  a  will  that  wills  itself.  A  profound  observation 
of  Leibnitz  is  widely  known;  man  does  not  will  to  will, 
but  wills  to  do,  for  if  he  wills  to  will  he  would  will  the  will 
to  will,  and  so  on  forever.  Knowledge  cannot  give 
evidence  of  a  power  beyond  the  scope  of  action  or  of  a 
mere  possibility.  Such  a  possibility  is  inferred  only 
through  ratiocination.  Knowledge  in  its  simplicity 
embraces  the  subject  and  will,  but  the  relation  between 
will  and  motive  constitutes  a  deduction.  Knowledge 
gives  evidence  only  that  if  there  is  a  will  to  do  a  thing 
the  thing  can  be  done,  and  goes  no  further.  In  a  great 
number  of  cases,  it  shows  us  the  motives;  and  if  some- 
times it  is  not  able  to  show  them,  that  does  not  mean 
that  the  motives  are  lacking.  Advice,  prayers,  threats, 
laws,  promises,  and  agreements  all  act  as  motives,  and 
the  desire  to  show  one's  own  power  over  strong 
motives  or  the  opportunity  and  necessity  of  decision 
when  there  is  perplexity  are  often  motives.  The  belief 
in  license  arises  from  the  fact  that  the  cause-motive  is  a 
thought  not  followed  immediately  by  action  and  that 
the  action  does  not  appear  as  equivalent  to  the  intensity 
of  the  cause;  whence  a  certain  incoherence,  that  is 
believed  to  be  absolute  independence.  On  the  other 
hand,  it  is  easy  to  disregard  feeble  desire  or  the  fleeting 
and  weak  solicitations  on  the  part  of  the  object 
and  accept  an  indeterminate  power  of  the  license  of 
indifference,  which  is  fundamentally  an  immoral  prin- 
ciple because  a  will  indifferent  ,to  motives  is  a  will  of 
itself  indifferent  to  good  and  evil. 

§  82.  Motive.  Definition  of  Character.  The  will  pre- 
supposes a  cause,  or  at  least  a  motive.  The  external 
cause  modified  by  its  excitability  of  the  organism  on 


186  PRACTICAL  FOUNDATIONS 

which  it  exercises  its  actions,  determines  the  will.  It 
becomes  motive  when  it  has  been  represented  by  the 
mind,  in  which  case  it  has  its  virtue  qua  motive,  that 
is,  not  by  what  it  is  but  by  what  it  is  represented  to  be, 
that  is,  its  reproduction  in  the  mind.  Psychical  activity 
begins  with  the  transformation  of  causes  into  motives. 
Every  man  forms  his  motives  for  himself  since  each 
represents  differently  the  external  stimuli  of  which  he 
increases  or  decreases  the  energy.  At  first,  there  is 
only  isolated  action;  then  there  arises  in  the  subject  a 
certain  facility  of  renewing  such  action  which,  reacting 
strongly,  is  called  propensity.  Propensity  springs  from 
habit  in  one  or  more  parts  of  the  sphere  of  action 
and  thus  characteristic  lineaments  and  traits  are  created. 
If  characteristic  traits  are  coordinated  and  subordinated 
to  a  supreme  will  there  is  character.  Whence  it  follows 
that  the  activity  of  the  mind,  besides  converting  cause 
into  motive,  raises  motive  to  the  importance  of  a  law, 
forms  habit,  and  is  the  organic  principle  of  all  the  coordi- 
nate and  subordinate  volitions.  Character  differs  from 
nature,  temperament,  and  idiosyncrasy,  although  such 
terms  are  not  foreign  to  it.  Nature  depends  upon  the 
variable  conditions  of  the  organic  systems  and  upon 
the  prevalence  of  one  over  other,  for  example,  upon  the 
prevalence  of  the  muscular  system.  Temperament  is 
the  result  of  different  dispositions  of  receptivity  and 
nervous  spontaneity.  Idiosyncrasy  is  reducible  to  con- 
genital sympathy,  antipathy,  and  apathy.  The  char- 
acter is  formed ;  nature  and  temperament  exist  from  birth. 
Character  appears  in  youth,  the  others  belong  to  every 
age.  Character  cannot  be  voluntarily  formed.  In  fact, 
there  are  many  individuals  without  character,  although 
all  have  characteristic  traits.  Nature,  temperament, 
and  idiosyncrasy  are  common  to  all.  Character  pre- 
supposes spontaneity.  The  other  terms  presuppose 


DEFINITION  OF  CHARACTER  187 

necessity.  In  character,  all  the  natural  elements  depend- 
ent upon  the  organism  are  found  as  well  as  the  influences 
of  external  circumstances  of  both  a  physical  and  moral 
nature.  There  is  much  that  is  derived  from  our  activity 
that  merely  cooperates,  or  acts  to  transform  or  create 
new  power.  The  conception  of  motive  is  not  contra- 
dictory to  that  of  free  will,  not  synonymous  with  casual 
will  or  license,  since  motive  demands  an  act  of  intrinsic 
conversion  or  full  approval  by  the  mind.  Such  an  act 
is  a  valuating  judgment  of  the  practical  worth  of  the 
cause,  and  the  more  it  is  extended  and  lengthened  so 
much  more  does  responsibility  increase.  But  what 
emanates  from  our  activity,  which  cooperates,  trans- 
forms, and  creates,  is  the  action  of  an  entity  not  necessi- 
tated to  act,  but  which  has  nevertheless  motives  for 
prompt  action.  On  one  hand,  freedom,  or  free  will,  is 
presented  as  a  power  of  diverse  and  contrary  parts  under 
which  the  conversion  of  cause  into  motive  and  the  creation 
of  rules  of  conduct  and  the  formation  of  habit  can  or 
cannot  take  place.  On  the  other  hand,  motives  are  not 
lacking.  In  other  words,  it  is  necessary  to  keep  the 
notion  of  the  necessitating  force  of  motive  and  volition 
entirely  distinct  and  not  to  confuse  appetition  with  will 
and  above  all  not  to  fall  into  indeterminism.  If  the 
force  of  motive  is  one  with  that  of  will,  there  is  necessity 
and  not  freedom,  and  if  appetition  is  controlled  by 
impulse  there  is  no  will.  Holding  that  the  subject 
increases  and  diminishes  the  force  of  motive  without 
reason  is  to  admit  indeterminate  and  empty  power. 
Certainly,  the  will  does  not  determine  an  action  without 
a  motive,  but  the  motive  of  a  voluntary  act  is  not  con- 
verted by  itself  into  action,  as  Masci  tells  us,  but  is  an 
idea  and  thought,  a  valuing  judgment.  Ideas  have  the 
least  impulse  and  move  by  the  causal  energy  of  the  subjcet, 
hence  the  semblance  of  choice  between  several  reasons 


188  PRACTICAL  FOUNDATIONS 

which  are  without  impulsive  force  and  indicate  different 
possibilities.  Volition  is  the  act  of  that  energy  accumu- 
lated by  reflection,  judgment, and  abstract  ideation,  and 
is  accompanied  by  a  feeling  of  effort  or  tendency  which  a 
latent  activity,  overcoming  obstacles  and  expanding,  has 
for  self-realization.  The  subject  has  not  necessarily 
acquired  this  energy  since  it  is  formed  together  with  the 
habit  of  will  in  periods  of  reflection  or  in  the  train  of 
practical  tendencies  in  the  state  of  independence  of 
impulse  derived  from  the  power  of  knowledge.  Energy 
is  constituted  little  by  little  by  that  freedom  which  is 
not  a  lack  of  motive  but  an  autonomy  of  deliberation. 
The  subject  is  capable  of  predetermining  its  volitions 
and  preparing  them  from  afar,  increasing  and  not 
diminishing  its  freedom,  because  the  single  acts,  that 
work  together  to  give  the  constant  direction  of  the  will, 
are  autonomous.  The  greater  coherence  and,  therefore, 
the  greater  force  of  character  is  accompanied  by  a  greater 
imputability,  so  that  if  the  prevalence  of  impulse  is  not 
a  natural  phenomenon  and  a  consequence  of  nature, 
voluntarily  acquired  responsibility  increases  because 
action  is  not  so  much  the  result  of  a  momentary  volition 
as  the  product  of  a  predeterminate  and  fixed  will. 

§  83.  Chance  and  Statistics.  The  subject  of  the 
regularity  and  constancy  of  moral  facts  which  are  the 
result  of  the  general  permanent  conditions  of  the  social 
organism  gives  this  problem  still  another  aspect.  It 
raises  the  question  whether  moral  statistics  can 
harmonize  the  conception  of  the  free  will  of  man  with 
that  of  the  general  laws  by  which  in  every  year  of 
a  determinate  period  of  the  life  of  a  people  there  is  the 
same  number  of  crimes  similar  in  complexity,  in  kind, 
and  even  in  method  of  execution,  and  the  same  pro- 
portion between  the  acquittals  and  convictions,  and 
the  same  number  of  illegitimate  births.  We  must 


CHANCE  AND  STATISTICS  189 

reflect  that  the  regularity  of  moral  facts  is  neither 
absolute  nor  equal  to  the  immobility  of  external  forces 
but  is  relative  and  comprehends  social  and  historical 
causes  capable  of  modification  and  susceptive  of  reform. 
Neither  is  it  the  constancy  of  tellurgical  and  climato- 
logical  conditions  that  forces  man  and  society,  particu- 
larly in  civilization,  to  contribute  in  a  given  proportion 
to  the  balance  of  crime,  but  it  is  the  great  complexity 
of  unaltered,  intellectual,  moral,  and  economic  condi- 
tions which  brings  about  approximately  the  same  num- 
ber of  crimes  in  a  given  period.  We  are  very  far  from 
constructing  in  the  moral  order  those  characters  of  true 
stability  and  generality  that  exist  in  the  physical  order. 
Such  characters  are  easier  found  in  matters  that  have 
important  physical  and  physiological  elements,  that  is,  in 
the  statistical  doctrine  of  population  and  in  anthropo- 
metry. The  school  of  Quetelet,  with  its  mechanical  and 
astronomic  tendencies,  attempts  to  explain  the  constancy 
of  moral  phenomena  by  relying  more  upon  external 
than  internal  relations,  teaching  that  the  necessity 
of  such  phenomena  is  to  be  found  in  the  complexity, 
while  the  difference,  the  individual  note,  and  freedom  exist 
in  the  men  who  compose  the  social  essence.  Drobisch 
in  "Die  Moralische  Statistik  und  die  Menschliche 
Willensfreiheit"  proceeds  in  an  inverse  way  and  shows 
that  the  constancy  of  moral  statistics  is  not  a  fact, 
although  it  is  a  product  of  causes  capable  of  change; 
that  the  average  man  represents  the  relation  between 
those  who  do  something  and  others  who  do  not;  that  the 
habit  of  doing  something  from  the  point  of  view  of 
statistics  depends  upon  the  nature  of  man  in  general 
and  of  the  race,  and  upon  the  social  conditions  and  the 
character  of  the  individual  in  particular.  Habit  produces 
or  does  not  produce  an  act  depending  upon  the  force 
of  the  occasion  of  impulse,  the  degrees  of  resistance 


190  PRACTICAL  FOUNDATIONS 

derived  from  the  predominance  of  reason  and  culture. 
With  a  change  in  such  conditions  the  constancy  expressed 
by  the  average  would  fail.  Moral  statistics  cannot 
answer  the  question  of  free  will,  he  adds,  because  it  is 
not  suited  to  the  examination  of  psychological  motives 
of  action  although  it  can  explain  the  proportions  of 
action.  Oettingen  in  "Moral  Statistik"  treats  of  social 
ethics  on  an  empirical  basis  of  this  kind  of  statistics 
and  starts  out  with  the  conception  of  man  as  a  free  and 
responsible  being  bound  to  society  by  infinite  relations. 
Oettingen  sees  in  the  regularity  of  social  facts  an  immedi- 
ate providential  control.  In  this,  he  agrees  with  Suess- 
milch,  differing  from  Quetelet  who  believes  only  in 
natural  and  physical  law.  But  he  does  not  admit  the 
religious  predestination  of  the  old  theologians  or  the 
mere  license  of  the  philosophers,  but  accepts  the  prin- 
ciple of  Lotze  that  freedom  of  will  without  a  motive  is 
absurd.  He  believes  that  the  more  the  moral  life  of 
the  individual  interpenetrates  that  of  society,  the  more 
the  consciousness  of  responsible  existence  will  increase. 
But  Drobisch  and  the  others  are  right  in  denying  the 
competency  of  moral  statistics  on  this  subject.  The 
question  of  free  will  is  not  properly  an  object  of  statistics 
because  it  is  referable  to  human  activity  which  is  con- 
sidered by  the  entire  group  of  moral  sciences.  Where- 
ever  the  action  of  man  is  found,  the  essentially  physio- 
logical problem  of  freedom  arises.  It  is  as  old  as  philos- 
ophy and  theology.  Moral  statistics  study  reality,  the 
determined  extrinsic  act  of  the  will,  as  a  unit,  and  not 
as  the  possibility  of  the  will,  the  subject  of  psychology. 
Moral  statistics  can  only  deny  license  which  is  without 
motive,  because  in  human  acts,  impulses  and  motives 
always  arise,  but  it  cannot  deny  free  will.  Those  who 
appeal  to  statistics  to  disprove  free  will,  base  the  inter- 
nal necessity  of  determination  on  the  simple  uniform- 


THE  SUMMUM  BONUM  191 

ity  shown  by  the  average,  going  from  the  complex  result 
to  the  individual  fact,  while  it  is  not  right  to  confuse  the 
extrinsic  conditions  of  phenomena  with  the  phenomena 
themselves.  They  think  that  the  relative  constancy  of 
the  result  excludes  an  indefinite  variety  of  combina- 
tion of  the  free  elements  and  so  the  constancy  is  greater, 
observed  Cournot  in  "Exposition  de  la  Theorie  des 
Chances  et  des  Probabilites,"  when  the  elements  have 
freedom  of  position  and  independent  movement,  be- 
cause, in  that  case,  compensation  between  the  possible 
individual  variations  becomes  fuller  and  more  perfect. 
It  is  necessary  above  all  to  define  the  nature  of  like 
elements  to  come  to  a  conclusion,  and  the  definition 
is  not  within  the  sphere  of  the  social  sciences  and 
statistics. 

§  84.  The  Summum Bonum.  Will  is  rational  appetite 
and  tends  as  such  to  the  end  of  man.  The  end  of  man 
is  his  well-being,  or  happiness,  says  Aristotle,  in  which, 
since  man  is  a  spiritual  and  organic  subject,  is  included 
well-doing  and  well-living,  duty  and  pleasure.  The 
true  human  good  in  which  lies  the  supreme  end  of 
conduct  demands  the  subordination  of  sentiment,  pas- 
sion, and  interest  to  reason.  So  conceived,  the  good 
is  not  confused  with  the  mind  freed  from  passion  of 
the  Stoic,  with  the  spirit  hostile  to  the  world  of  the 
early  Christians,  or  with  the  abstract  formal  will  of 
Kant,  which  is  only  autonomous  when  it  wills  per  se  and 
proudly  distances  every  alliance  with  the  inclinations 
of  the  senses;  nor  is  it  reducible  to  the  mere  pleasure  of 
the  Epicureans  or  the  interest  of  the  Utilitarians. 
Starting  out  with  the  idea  of  good  which  most  conforms 
to  human  nature,  the  sentiments  and  appetites  are  not 
contradictory  to  moral  will,  but  on  the  other  hand, 
constitute  its  concreteness.  According  to  Bruno  and 
Spinoza,  the  good  is  properly  a  transformation  of  pas- 


192  PRACTICAL  FOUNDATIONS 

sionate  movements  into  rational  tendencies.  The  will 
is  effectively  autonomous;  it  contains  the  sums  of  our 
sentiments,  emotions,  and  interests,  and  subjects  them 
to  the  control  of  the  mind.  On  this  condition  only  is 
moral  liberty  obtained,  which  is  realized  by  virtue  or 
the  habit  of  doing  the  good.  Aristotle  makes  virtue 
consist  in  a  measure  of  reason  and  in  custom  with  advice 
and  deliberation,  equally  far  from  the  excesses  of  too 
much  or  too  little,  that  is  from  hyperbole  and  ellipsis. 
He  says  that  it  does  not  lie  in  passion,  capacity,  science, 
or  art.  Passion  is  the  sudden  excitement  of  sentiment 
depending  largely  upon  the  organic  state  or  tempera- 
ment and  really  deserving  neither  blame  nor  praise. 
A  capacity  is  given  by  nature,  while  virtue  is  acquired. 
Science  teaches  us  good  and  evil  but  virtue  is  the  prac- 
tice of  the  good.  Art  shows  us  the  external  part  of  action 
but  virtue  puts  a  value  on  the  intent.  Virtue,  he  adds, 
does  not  come  from  nature,  that  is,  it  is  not  a  capacity; 
nor  is  it  without  nature,  but  it  should  include  all  of  man 
and  should  not  be  placed  in  a  particular  part,  even  in 
the  most  noble  part  of  his  being.  Happiness,  the  good,  the 
supreme  end,  or  virtue  presuppose  autarchy,  that  is, 
the  condition  of  self-sufficient  man.  He  is  not  happy; 
he  does  not  attain  his  ends  or  the  good;  and  he  does 
not  become  truly  virtuous,  when  that  sufficiency  is  lack- 
ing. Autarchy  is  gained  in  society,  in  communion  of 
life,  sentiment,  and  in  discussion,  common  ideas,  and 
language.  Man  naturally  tends  to  this  and  can  be  called 
the  political  animal.  Furthermore,  says  the  Stagirite, 
every  common  good  keeps  men  bound  together  and  urges 
them  towards  social  life.  From  this  it  can  be  inferred 
that  ethics  are  a  part  of  politics,  and  that  happiness  and 
virtue  are  not  possible  without  social  life.  We  moderns 
express  the  same  idea  by  saying  that  morality  and  the 
subordination  of  interest  to  reason  do  not  appear  with- 


THE  SUM  MUM  BONUM  193 

out  language,  culture,  custom,  and  education,  which 
imply  the  existence  of  society.  The  mind  develops  by 
the  aid  of  language,  teaching,  and  culture,  and  the  will 
is  effectively  free  when  educated  for  the  good.  Man, 
from  a  simple  individual,  develops  into  a  moral  subject 
and  person  in  civil  communities,  where  he  acquires  a 
full  knowledge  of  himself  and  concrete  independence. 
So,  in  ethics,  the  primal  activity  of  the  mind  is  seen 
because  moral  necessity  is  intrinsic  in  the  idea  of  good 
and  cannot  be  the  effect  of  organic  need,  custom,  and 
sentiment.  Moral  necessity  is  the  human  end  freely 
conceived.  It  is  the  mediate  and  reflected  end  of  which 
there  is  no  trace  in  instinct  and  which  can  be  born  only 
from  the  depths  of  the  spirit  as  practical  knowledge. 
Nature  gives  us  life  and  a  tendency  to  preserve  it.  She 
adds  happiness  as  a  purpose  and  shows  us  the  advantages 
of  society,  but  the  ethical  necessity  of  these  ends  and 
their  universality  are  productions  of  thought,  which  gives 
form  to  this  sensible  matter.  It  is  true  that  organic 
need,  custom,  and  moral  sentiment  are  antecedent,  but 
such  things  are  not  sufficient  for  the  genetic  explanation 
of  the  conception  of  morality.  It  is  certain  that  man 
begins  by  following  selfish  and  social  impulses  and 
later  he  becomes  accustomed  to  act  so  that  his  knowledge 
is  in  accord  with  the  knowledge  of  his  fellow-beings 
about  that  which  it  is  well  for  him  to  do  for  the  benefit 
of  his  existence  and  of  that  of  the  others,  approving  and 
disapproving  actions  according  to  some  variable  criterion 
at  first  imposed  upon  him,  but  later  transformed  by  him 
into  a  universal  principle,  and  qhanged  by  habit  into  a 
duty;  so  that  he  is  wont  to  act  as  he  should  because  he 
has  discovered  the  ethical  necessity  of  the  tendency  to 
live  and  of  the  social  sentiments  and  civil  community 
as  Fiorentino  said  in  the  book  cited.1 

1"Lezioni  di  Filosofia,"  cit.  §  79,  ante. 


194  PRACTICAL  FOUNDATIONS 

§  85.  Morals  and  Law  are  Part  of  Ethics.  Human 
good,  which  is  the  unity  of  right  doing  and  right 
living  or  the  subordination  of  the  appetites  and 
interests  to  reason,  presupposing  as  it  does  the  common 
life,  is  an  object  of  ethics.  Ethics,  understood  in  this 
broad  sense,  contain  the  universal  determination  and  the 
supreme  principles  of  will  and  action.  Morals  and  law 
are  parts  of  ethics  because  the  good  can  be  developed 
largely  in  the  intimacy  of  the  relations  of  knowledge, 
and  can,  on  the  other  hand,  be  well  shown  in  the  external 
relations  between  man  and  man,  and  man  and  things. 
In  the  first  case,  the  mind,  says  Vico,  should  act  against 
cupidity  and  construct  ethical  virtue  or  the  sphere  of 
morals  in  order  to  preserve  and  increase  its  empire.  In 
the  second,  the  mind  becomes  measure  or  proportion  in 
which  it  is  necessary  to  divide  the  utilities  equally  among 
men,  and  such  is  the  idea  of  law.  The  matter  of  law  is 
utility ;  the  form  or  the  measure  is  born  from  the  depth 
of  the  mind.  At  this  point,  there  reappears  in  the  high- 
est degree  the  original,  synthetic  activity  of  the  spirit, 
which  is  found  in  feeling,  representation,  thought,  and 
appetite,  and  which  is  the  base  of  man's  personality. 
The  conception  of  Hegel  is  identical  with  that  of  Vico 
because  the  conformity  of  the  subjective  to  the  objec- 
tive will,  which  is  the  ethical  act  or  freedom  for  Hegel, 
as  Spaventa  showed  in  "Studi  sull'  Etica  di  Hegel,"  is 
externally  revealed  as  law  or  else  internally  explained 
as  the  origin  of  morals.  Law  is  the  kingdom  of  external 
liberty;  morals  are  internal  liberty.  In  this  way,  the 
idea  of  law  is  found  deductively  starting  from  the 
double  series  of  theoretical  and  practical  principles. 
Such  principles  are  essentially  philosophical  and  connect 
the  philosophy  of  law  with  philosophy  in  general.  They 
are  the  foundations  of  science  which  show  the  supreme 
rationale  of  justice  understood  in  its  proper  sense. 


POSITIVE  LAW  MANDATORY  195 

A  juristic  philosophy,  independent  of  the  two  orders  of 
mother-ideas  emphasized  in  this  and  the  preceding  chap- 
ters, would  not  be  a  philosophy.  It  would  be  at  most  a 
formal  introduction  to  the  study  of  positive  law.  It  is 
useful  to  keep  constantly  in  mind  that  the  philosophy  of 
law  is,  and  necessarily  must  be,  part  of  philosophy,  no 
matter  how  great  a  development  of  particular  studies 
it  necessitates. 

§  86.  Positive  Law  is  Mandatory  and  Inhibitive. 
Now  the  measure  or  proportion  of  utilities,  which  is 
law,  imposes  commands  and  prohibitions  upon  men. 
Through  commands  it  prescribes  what  should  be  done 
so  that  the  proportion  may  be  obtained ;  through  pro- 
hibitions it  determines  what  it  is  necessary  to  abstain 
from  doing  in  order  to  attain  the  proportion.  The 
juristic  imperative  is  in  both  positive  and  negative. 
It  demands  respect  from  man,  allowing  him  what  is  his 
and  prohibiting  him  from  offense.  The  proportion  of 
utilities  cannot  be  effected  without  the  idea  of  individual 
and  social  man  and  the  principle  of  personality.  Be- 
tween the  command  and  prohibition  lies  the  zone  of 
the  permissible,  recognized  by  the  exclusion,  command, 
and  prohibition,  and  which  does  not  consequently  need 
a  formula  of  rational  law.  The  possibility  of  a  "lex  per- 
missa"  is  found  in  positive  law,  which  removes  a  prohibi- 
tion and  allows  a  "jus  singulare,"  or  allows  an  action  in 
cases  of  doubtful  legal  right.  The  sentence  of  Modes- 
tinus,  therefore,  "  Legis  virtus  est  imperare  vetare  per- 
mittere,"  is  referable  to  positive  law  and  but  to  a  limited 
extent  to  philosophical  law.  When  law  commands  or 
prohibits  in  the  last  analysis,  it  merely  assigns  to  a 
person  the  determinate  quality  or  quantity  of  rights 
with  which  he  can  attain  his  essential  ends.  It  estab- 
lishes the  ' '  suum  necessarium ' '  of  the  person .  What  the 
law  neither  commands  nor  prohibits  is  the  complexity 


196  PRACTICAL  FOUNDATIONS 

of  conditions  and  advantages  not  necessary  to  man. 
Such  complexity  forms  the  sphere  of  the  "  suum  non  neces- 
sarium."  From  this  it  follows  that  action  is  a  question 
of  duty  if  it  is  connected  with  a  law  that  commands  or 
prohibits,  and  whoever  finds  himself  in  the  ethico-juristi- 
cal  necessity  of  fulfilling  it,  can  have  a  reasonable 
expectation  of  not  being  disturbed  in  carrying  out  his 
obligation.  It  is  in  this  sense  of  law  as  the  norm  that  the 
first  juristic  duty  is  derived,  and  later  comes  law  as  a 
faculty  or  power.  But  action  is  purely  facultative  if 
it  is  considered  in  relation  to  legal  permission. 
Under  this  aspect,  therefore,  law  has  its  origin  in  the 
power  of  doing  something  perhaps  not  juristically 
obligatory  but  merely  convenient,  and  then  comes  the 
duty  or  the  necessity  of  respecting  another's  rights.  It 
can  be  easily  understood  that  he  who  thinks  it  convenient 
to  do  something  should  not  offend  the  laws  of  ethics,  of 
which  law  is  a  part.  Neither  is  it  difficult  to  understand 
that  this  theory  refers  to  juristic  duty  and  law  as  a 
facultas  agendi,  and  not  to  moral  duty,  which  is  always 
based  on  the  supposed  justice  in  the  object  and  has 
no  correlative  in  the  rights  of  others.  If  it  has,  it  be- 
comes juristic.  It  is  possible  that  an  act  juristically 
facultative  is  morally  obligatory,  because  we  can  point  out 
that  in  such  a  hypothesis  it  is  a  question  of  the  preced- 
ence of  moral  and  not  juristic  duty.  It  follows  as  a  con- 
sequence of  what  we  have  said,  that  law  in  the  subjective 
sense  is  not  all  reducible  to  the  permissive,  as  Rosmini 
and  Seydel  in  his  "Ethik"  thought.  The  first  defines 
it  as  the  faculty  of  doing  what  is  pleasant,  protected  by 
moral  laws,  provided  it  does  not  hurt  another.  But 
often  arightis  the  legitimate  claim  to  do  what  is  necessary 
for  human  nature.  In  the  series  of  the  higher  relations, 
the  connection  between  juristic  rights  and  duties  is 
more  rigorous.  In  it,  it  is  seen  that  a  faculty  belongs 


COERCIVE  AND  HARMONIOUS  197 

to  a  person  to  exactly  the  extent  that  he  has  a  duty 
to  fulfill  it.  The  exercise  of  a  public  function,  for 
example,  constitutes  the  right  of  authority,  but  it  is 
first  a  duty.  Secondly,  as  the  series  of  relations  descends 
and  approaches  the  sphere  of  the  permissible,  the  con- 
nection becomes  less  stringent  and  finally  disappears. 
The  individual  has  certain  rights  of  a  family  nature 
which  do  not  presuppose  precedent  juristic  duties, 
although  they  can  be  connected  with  moral  duties. 

§  87.  Law  is  Coercive  and  Harmonious.  If  law  is 
the  good  which  can  be  realized  in  the  external  relations 
between  man  and  man,  and  man  and  things,  it  is  logically 
inferable  that  it  contains  potential  coercion,  and  that 
it  is  the  principle  of  coexistence  and  harmony  of  life. 
The  exteriority  of  the  relations  implies  action;  both 
render  physical  and  psychological  coercion  possible; 
that  is,  physical  force  and  intimidation.  Coercion  is 
the  means  for  enforcing  the  law  against  recalcitrant 
wills.  It  is  the  victorious  manifestation  of  the  law. 
Force,  put  in  the  service  of  the  law,  loses  its  blind  and 
brutal  attributes,  and  develops  into  an  ethical  power. 
The  spectacle  of  the  triumph  of  justice  through  coercion 
can  in  no  wise  be  likened  to  a  spectacle  of  natural  forces 
set  loose,  because  it  is  the  ethical  power  ruling  in 
the  world  of  free  essence,  as  Schelling  says,  before  which 
the  very  activities  of  nature  give  way.  It  is  customary 
to  picture  justice  with  scales  and  a  sword.  The  scales 
without  the  sword  are  powerless;  the  sword  without 
the  scales  are  violence.  It  can  be  shown  that  law  is 
the  principle  of  coexistence  and  harmony  by  reflecting 
that  if  each  is  given  his  own,  there  can  be  no  lasting 
motive  for  discord  and  war.  The  friendship  of  the  parts 
of  the  great  social  whole  is  to  be  preserved  by  realizing 
the  proportion  of  advantages.  Moral  well-being  is  the 
only  basis  of  constant  friendship.  Justice  is  the  true 


198  PRACTICAL  FOUNDATIONS 

magnet  in  civil  life.  Aristotle  reached  the  same  conclu- 
sion starting  with  another  idea,  that  of  the  impossibility 
of  picturing  virtue  without  the  common  life.  He  speaks 
of  the  individual  virtues;  for  example,  temperance, 
bravery,  and  prudence;  but  in  these  he  sees  merely  a 
commingling  of  appetites  and  reason.  According  to  him, 
justice  contains  all  the  other  virtues  and  is  the  chief 
fundamental  of  ethics,  because  it  shows  more  clearly 
than  the  others  the  demands  of  common  life.  Everyone 
can  be  brave,  prudent,  and  temperate  if  he  take  no  care 
for  his  fellows,  but  on  the  other  hand  nobody  can  be 
just,  except  in  society.  Now  society  is  derived  from 
need,  because  the  individual  is  not  self-sufficient;  need 
is  conducive  to  reciprocity  of  service  and  to  the  exchange 
of  acts  and  things.  Inter-exchange  demands  equality, 
and  this  equality  is  justice  in  its  original  form.  Common 
life,  therefore,  the  essential  condition  of  virtue  and  moral- 
ity, cannot  be  sustained  without  justice,  which,  however, 
is  but  complete  virtue.  Rosmini  tries  to  eliminate  from 
the  definition  of  law  the  conception  of  society  and  even 
that  of  real  coexistence,  but  he  cannot  get  away  from  the 
notion  of  a  possible  coexistence,  so  intrinsic  is  the  union 
of  the  idea  of  the  coexistence  of  men  with  justice. 
"Let  us  hold,"  he  said,  "that  the  idea  of  law  would 
exist  if  there  were  but  a  single  individual  of  the  human 
species";  then  he  goes  on  to  consider  him  in  a  hypo- 
thetical relation  with  other  possible  individuals.  With- 
out doubt,  possible  coexistence  is  a  supreme  abstraction 
beyond  which  we  cannot  go  without  renouncing  all 
attempts  to  understand  law.  But  the  ideas  of  moral 
well-being,  virtue,  and  law  presuppose  common  life, 
understood  in  its  integrity;  that  is,  civil  community  and 
real  coexistence  in  which  alone  self-knowledge  and  true 
liberty,  with  their  innumerable  physical,  intellectual,  and 
moral  subsidiaries,  accumulated  by  the  collective  activ- 


LAW  SUBJECT  TO  EVOLUTION  199 

ity,  are  acquired.  In  other  words,  concrete  and  active 
common  life  is  necessary  for  the  development  of  ethics. 
Rosmini  puts  aside  the  conception  of  possible  coexist- 
ence, and  has  recourse  to  that  of  society  and  real  co- 
existence in  his  definition  of  the  law  as  the  personal 
activity  or  the  activity  of  the  subject,  master  of  his 
acts,  because  this  mastery  over  one's  acts  is  only  de- 
veloped in  full  self-knowledge  and  freedom. 

§  88.  Law  is  Subject  to  Evolution.  To  conceive  of  law 
as  the  principle  of  coexistence  and  harmony  of  life  is 
equivalent  to  regarding  it  as  an  organic  principle  and, 
therefore,  to  subjecting  it  to  the  general  laws  of  evolu- 
tion which  all  organisms  obey.  Evolution  means  the 
development  of  new  attributes  and  the  increasing  division 
of  functions  together  with  a  progressive  autonomy  of 
parts,  a  complication  of  forms  always  more  distinct  and 
coherent  with  more  perfect  qualifications.  Law  follows 
evolution  because  it  comprehends  an  always  increasing 
number  of  relations,  that  in  time  become  better  dis- 
tinguished, at  first  formed  by  sense,  then  by  phantasy, 
and  finally  by  reason.  Law  grows  progressive  and 
struggles  to  conquer  the  resistance  which  it  meets  in 
its  path;  "Jus  autum  majorum  gentium,"  says  Vico, 
"est  jus  privatse  violentiae";  which  has  attended  the 
existence  of  the  struggle  in  law  from  its  very  beginning. 
To  Ihering  we  owe  a  theory  about  the  struggles  of  law 
that  is  not  without  importance.  "Law,"  he  writes, 
"is  like  Saturn  who  devours  his  own  children,  because  it 
creates  and  then  destroys  statutes,  institutious,  and  in- 
terests." It  looks  to  preserve  its  actual  form  by  force 
reinforcing  itself  against  civil  wrong  and  crime.  So  the 
manifestations  of  the  law,  as  norms,  do  not  escape 
the  struggle,  because  habit  is  not  established  without 
conquering  obstacles.  Jurisprudence  advances  among 
the  disparities  of  beliefs  and  the  contradiction  of  decrees ; 


200  PRACTICAL  FOUNDATIONS 

and  the  statutes  of  our  day  can  well  be  considered  the 
result  of  parliamentary  battles.  Ihering  stops  to  con- 
sider the  struggle  for  rights  subjectively  understood. 
The  struggle  for  rights  should  be  inspired  by  the  feeling 
of  wounded  personality,  and  not  by  economic  interest 
alone,  about  which  it  is  reasonable  to  compromise,  unless 
there  is  a  wound  to  the  personality.  In  the  defense  of 
one's  rights,  all  the  ethical  conditions  of  life  take  part 
and,  therefore,  the  struggle  constitutes  a  duty  on  the 
part  of  the  person  towards  himself.  The  struggle  is 
also  a  duty  of  the  individual  towards  society,  by  keeping 
whole  and  safe,  by  his  resistance,  the  vigor  of  the  law,  and 
hindering  it  from  becoming  ineffectual.  The  State  has 
its  most  ample  source  of  strength  in  the  sane  and  vig- 
orous juristic  sentiment  of  individuals,  because  only 
those  who  have  had  the  courage  to  struggle  bravely 
for  their  rights  and  the  protection  of  their  personality, 
are  in  a  position  to  feel  the  sentiments  of  patriotism  or 
take  an  active  part  in  the  civil  concerns  when  the  national 
dignity  is  offended. 

§  89.  The  Laws  of  Evolution  Show  the  Course  of  the 
Development  of  Law.  The  laws  of  evolution,  to  which 
law  is  subject,  give  us  the  principle  or  criterion  of  its 
logical  division,  and  it  seems  indubitable  that  the  first 
forms  of  law  must  have  been  the  most  simple  and 
abstract,  that  is,  the  least  complicated.  They  included 
the  relations  of  private  law,  since  members  of  the 
social  order  strive  for  the  attainment  of  their  particular 
ends  by  means  of  voluntary  acts.  Less  simple  and 
abstract  are  the  relations  of  public  law  which  embrace 
the  relations  arising  from  the  realization  of  universal 
ends  through  an  ordered  power,  in  which  the  individ- 
uals take  part  as  citizens  and  not  as  private  men.  And 
still  more  complex  are  the  forms  of  international  law 
which  presuppose  the  coexistence  of  countries  and  the 


PRIVATE  AND  PUBLIC  LAW  201 

great  principle  of  the  humanity  of  nations,  of  which 
Vico  wrote.  The  evolution  of  law  is  parallel  and  to  a 
certain  extent  identical  with  that  of  personality,  (for 
it  first  is  singular,  then  collective  and  political,  and  finally 
international,)  since  the  idea  of  personality  is  the  essen- 
tial principle  of  law. 

§  90.  Distinction  between  Private  and  Public  Law. 
As  to  the  distinction  between  private  and  public  law 
we  must  say  that  outside  of  the  criterion  of  the  nature 
of  their  respective  ends  and  means,  alluded  to  in  the  last 
paragraph,  first  pointed  by  Ahrens  and  later  by  Del 
Giudice  in  "Enciclopedia  Juridica,"  there  is  no  other  ac- 
ceptable criterion  because  it  can  only  lie  either  in  the 
subject  of  the  relation  or  the  means  of  its  enforcement. 
If  the  difference  lies  in  the  individual  or  political  subject, 
the  logical  consequence  is  that  moral  entities,  at  whose 
head  is  the  State,  would  not  be  able  in  any  way  to 
enter  private  law,  while  in  many  cases  they  are  in  con- 
ventional relations  with  individuals  and  act  as  private 
subjects  as  far  as  their  peculiar  nature  will  allow  them. 
If  it  lies  in  the  action,  and  the  relation  protected  by  a 
private  action  is  private,  and  the  relation  protected  by  a 
public  action  is  public,  we  have  a  very  extrinsic  criterion, 
that  is,  the  method  of  giving  the  law  strength  that  would 
not  be  in  itself  private  or  public  before  thinking  out  the 
means  of  effectuating  it.  The  particular  and  universal 
ends  which  we  have  emphasized  are  not  foreign  to  the 
Roman  definition  of  private  and  public  law,  the  former 
founded  on  private,  the  latter  on  public  utility.  Private 
or  general,  the  utility  is  always  included  by  the  principle 
of  the  purpose  or  the  teleological  criterion  which  rules  in 
the  human  world.  It  is  not  possible  to  reduce  the  scope 
of  private  law  to  a  reasonable  control  over  a  true  and 
proper  utility,  because  public  law  has  the  same  object. 
The  right,  which  is  obtained  by  a  proportionate  equali- 


202  PRACTICAL  FOUNDATIONS 

zation  or  the  imposition  of  a  tax,  looks  to  a  true  utility 
as  well  as  a  right  of  property,  legal  servitude  or  obliga- 
tion. The  utility,  which  is  the  exclusive  matter  of 
private  law,  has  essentially  to  do  with  rights  of  a  finan- 
cial value.  It  gives  the  special  characteristic  to  the 
juristic  relation  whether  the  subject  is  a  private  person, 
a  moral  entity,  or  a  State.  The  right  of  a  citizen,  for 
example,  to  the  restitution  of  tax  unjustly  paid,  is 
'  private,  as  is  the  right  of  the  State  to  have  the  price  of 
something  that  is  sold  or  leased,  because  in  both  cases 
it  is  a  question  of  a  utility  of  financial  value.  The 
electoral  right,  liberty  of  conscience,  and  the  right  of 
the  State  to  demand  tribute  are  not  private  rights  and 
do  not  include  financial  utilities,  but  are  advantages  or 
utilities  in  a  broad  sense.  This  is  the  theory  of  Gabba, 
who  points  out  that  the  error  of  believing  that  private 
rights  are  derived  only  from  voluntary  and  contractual 
acts.  It  is  born  of  such  acts,  but  it  has  its  origin  as  well 
in  unilateral  licit  and  illicit  acts  and  even  in  public  law. 
Harm  once  done,  even  if  extra-contractual,  there  is  gen- 
erated in  him  who  suffers  it  a  private  right;  the  obliga- 
tion of  indemnity,  which  binds  the  State  in  the  case  of 
appropriation  for  public  utilities,  is  correlative  with  the 
private  or  financial  right  of  him  who  is  deprived  of  his 
goods. 

§  91.  Individual  and  Social  Man  are  Intimately  Inter- 
penetrant.  Certain  it  is  that  in  private  law  the  particular 
will  is  dominant,  whence  itsspherelies  within  the  bounds 
of  the  "jus  voluntarium,"  but  it  should  not  be  believed 
that  the  "utilitas  singulorum"  is  exclusive  and  egoistical, 
because  man  lives  in  society,  and  consequently  his  will 
is  limited  by  the  general  will  and  his  interest  is  tempered 
by  the  interest  of  all.  On  the  contrary,  the  general  will 
is  imperative  in  public  law.  It  is  a  "jus  cogens"and  not 
susceptible  to  modifications  through  particular  agree- 


LAW  IS  HISTORICAL  203 

ments.  The  maxim,  "Jure suouti nemo cogitur,"  isappli- 
cable  to  private  law.  In  public  law,  on  the  other  hand, 
the  principle  that  he  who  has  a  faculty  to  exercise  is  in 
duty  bound  to  use  it,  is  rigorous.  The  two  maxims, 
however,  are  not  in  all  cases  exact  because  in  private 
law,  for  example,  there  is  guardianship,  which  is  a  social 
office,  "munus  publicum,"  and  in  public  law  there  is  no 
obligation  to  exercise  of  the  right  of  suffrage.  In  fact, 
there  are  no  mathematically  fixed  boundaries  between 
private  and  public  law,  since  the  development  of  law 
includes  all  men,  the  individual,  and  society.  The 
private  person  in  the  concrete  is  inseparable  from 
the  collective  person. 

§  92.  Law  is  Historical.  There  are  various  opin- 
ions about  the  methods  of  sequence  in  private  and 
public  law.  Stoerk  notes  that  the  method  in  the 
two  branches  of  law  cannot  be  separated  from  the 
nature  of  the  mind  of  the  legislator  and  from  a  coordin- 
ation of  ideas  through  the  categorical  characteristics 
of  subject,  object,  and  acquisition,  exercise,  and  loss 
of  rights.  In  private  law,  however,  the  formal  element, 
the  generalizing  activity  and  methodical  process  which 
consists  in  connecting  juristic  principles  with  human  na- 
ture prevails,  since  the  private  relations  are  very  simple 
and  typical.  In  public  law,  on  the  other  hand,  the  his- 
torical element  has  a  large  development;  variability  is 
dominant  and,  therefore,  the  systematization  of  the 
logico-dogmatical  element  is  less  important  than  the 
search  for  facts,  and  takes  secondary  place.  Laband 
writes  that  the  method  of  civil  law  is  strong  in  maxims 
and  that  they  have  less  importance  in  public  law.  We 
must  first  give  a  preliminary  explanation  to  the  concep- 
tions of  civil  law,  because  it  is  necessary  to  eliminate 
from  it  all  the  specific  elements  and  traits  peculiar  to 
private  law.  Now,  looking  closely  at  the  two  opinions 


204  PRACTICAL  FOUNDATIONS 

and  putting  aside  the  notions  that  are  exclusively 
referable  to  positive  law  and  its  technical  construction, 
we  must  remember  that  law,  be  it  private,  public,  or 
international,  is  always  a  human  idea,  that  is,  an  ideal 
principle  which  develops  in  history,  and  that  it  does  not 
consist  in  a  mere  logical  construction.  We  must  look 
upon  it  as  a  real  and  living  formation.  It  is  always 
based  on  human  nature,  in  that  it  is  explained  in  all  the 
wealth  of  its  attitudes  and  forms  throughout  the  lives 
of  nations  which  constitute  the  panorama  of  history. 
It  is  not  possible,  therefore,  to  dissociate  the  rational 
from  the  historical  element  in  the  treatment  of  law. 
If,  in  private  law,  the  generalizing  activity  is  more 
developed  and  the  formal  part  is  more  worked  out, 
that  does  not  mean  that  this  branch  of  law  is  not  an  his- 
torical formation,  but  only  that  the  relations  of  which 
it  takes  account  are  not  as  complex  and  variable  as 
those  of  public  law.  If  we  admit  that  the  relations 
of  private  law  are  less  complex  and  variable,  the 
prevalence  of  the  formal  element  should  cause  us  no 
surprise.  On  the  other  hand,  public  law  presupposes 
more  elevated,  comprehensive,  immutable  relations,  and 
it  is,  therefore,  evident  that  the  formal  element  and  the 
generalizing  activity  should  be  less  marked,  although 
such  relations  are  also  based  on  the  common  principle 
of  human  nature.  If  the  relations  of  public  law  are 
more  elevated  and  contain  new  elements,  the  simple 
conceptions  of  private  law  have  not  much  weight  in 
public  law.  Their  expurgation  should  follow  the  move- 
ment of  real  evolution  by  being  definite  and  complete. 
In  other  words,  there  should  be  a  transformation. 
Their  expurgation  is  thus  the  subtraction  of  what  has 
lost  its  value  and  the  addition  of  something  that  is  new. 
Civil  law  has  been  active  in  such  a  work  and  has  been 
profoundly  altered. 


CATEGORIES  OF  PRIVATE  LAW          205 

§  93.  The  Five  Categories  of  Private  Law.  The  law 
of  evolution  is  observable  in  the  categories  of  rela- 
tions understood  in  indicated  general  forms.  Every 
juristic  relation  demands  a  subject  and  an  object. 
Man  is  the  subject,  the  person,  the  subject  of  rights 
and  duties.  By  the  necessity  of  his  nature  he  is  urged 
to  bend  external  things  to  his  will,  and  to  bind  himself 
to  his  fellows  in  order  to  establish  a  reciprocal  and  con- 
tinual interchange  of  necessary  and  useful  objects.  By 
his  nature,  too,  he  is  fitted  to  realize  his  personality  in  the 
family  which  in  its  development  gives  place  to  inherit- 
ance. From  this  it  follows  that  there  are  five  categories 
in  private  law:  the  law  of  personality,  the  property  law, 
the  law  of  obligation,  the  law  of  family,  and  the  law 
of  inheritance.  It  is  evident  that  the  idea  of  inherit- 
ance is  founded  on  that  of  the  family,  which  in  its  turn 
is  founded  on  the  idea  of  an  activity  developing  over 
things  or  in  inter-personal  relations ;  an  activity  which  is 
referable  to  the  principle  of  the  person  in  himself,  the 
beginning  and  base  of  every  system  of  juristic  relations. 

§  94.  Civil  and  Commercial  Law.  Private  law  is 
civil  and  commercial.  Commercial  law  is  a  form  of 
private  law  that  is  properly  connected  with  right 
of  obligation,  because  its  relations  comprehend  particu- 
lar objects  and  means  derived  from  the  will  of  indi- 
viduals in  harmony  with  collective  ends.  Commercial 
law  is  needed  because  of  the  principles  of  civil  life 
and  special  rules  of  trade  to  give  facility,  promptness, 
and  security  in  commercial  relations.  It  is  special  and 
not  exceptional  or  privileged,  applying  to  all  acts  of 
trade  and  to  all  merchants. 

§  95.  Public  Law.  The  family  is  the  cellule  of 
the  State,  the  high  and  perfect  human  communion. 
Now  we  will  first  show  the  fundamental  structure  of 
the  State  and  then  its  functions,  its  administration, 


206  PRACTICAL  FOUNDATIONS 

or  that  action  which  more  especially  is  taken  over 
by  the  executive  power  and  the  government.  It  is 
the  duty  of  the  State  to  enforce  the  law  against 
every  act  tending  to  violate  its  precepts.  It  is  like- 
wise its  duty  to  determine  the  procedure,  to  declare 
the  law  in  the  interest  of  two  contending  parties,  and  to 
punish  its  infringement  in  the  interest  of  society.  From 
this  it  can  be  seen  that  the  categories  of  public  law,  in 
the  wide  sense,  are  constitutional,  administrative,  penal, 
and  judicial  or  procedural  law.  In  a  strict  sense, 
public  law  contains  the  constitution  and  administration 
of  the  State.  The  law  of  procedure  presupposes  private 
law,  public  law,  and  penal  law  and  is,  therefore,  the  most 
complex.  Penal  law  presupposes  the  organization  of 
the  State  and  all  the  statutes  whose  violation  it  regards. 
Administrative  law  is  to  constitutional  law  as  func- 
tion is  to  structure;  but  the  most  simple  relations  of 
public  law  are  constitutional.  This  does  not  mean  that 
no  regard  is  paid  to  functions  in  constitutional  theories. 
There  are  functions  in  such  theories,  but  they  are  politi- 
cal. When  it  is  said  that  constitutional  law  has  for  its 
object  the  structure  of  the  State,  while  the  administra- 
tive regards  its  functions,  the  structure  is  not  excluded 
from  the  administration,  but  in  a  general  way  the  con- 
stitutional law  is  made  predominant  statically,  while 
administrative  law  is  more  dynamic. 

§  96.  International  Law.  In  general,  international 
law  controls  interstate  relations,  or  the  relations  be- 
tween the  citizens  of  one  State  and  those  of  another, 
dividing  itself  thus  into  public  and  private  law. 
Public  international  law  embraces  the  categories  of 
international  persons,  their  possessions,  obligations, 
and  actions.  The  right  of  action  is  one  with  the 
right  of  war  which  includes  the  subjects  of  debate 
between  States  and  the  methods  of  eliminating  and 


GAIUS  AND  JUSTINIAN  207 

resolving  them,  together  with  the  rights  of  neutrality 
and  peace.  At  this  point,  we  may  notice  the  progress 
from  what  is  less  complex  to  that  which  is  more  complex, 
because  war  presupposes  the  normal  condition  of  peace, 
the  existence  of  rights  of  property  and  obligation  between 
different  States  founded  upon  their  personality.  Private 
international  law  follows  logically  public  international 
law,  because  the  relations  of  individuals  belonging  to 
different  nations  are  based  on  the  highest  principles  of 
the  common  natures  of  the  peoples,  their  coexistence 
and  solidarity.  It  cannot  be  believed  that  private  inter- 
national law  should  exist  prior  to  public  international  law 
for  the  same  reasons  which  prove  the  antecedence  of 
private  law  to  public  law.  Yet  we  cannot  admit  the 
similarity  of  international  private  law  with  private  law 
in  an  absolute  sense;  that  is,  allow  international  private 
law  to  antedate  national  public  law.  Private  law  is 
essentially  domestic.  It  is  enacted  by  the  legislators 
of  each  State,  while  international  private  law  is  foreign. 
One  is  actuated  by  the  general  will  of  the  people;  the 
other  demands  the  express  or  tacit  consent  of  another 
people  for  its  application.  Private  law  varies  with 
diverse  national  consciousness ;  private  international  law 
tends  to  establish  identical  norms  for  the  decision  of 
contests  about  the  applicability  of  statutes  or  laws 
foreign  to  the  nation. 

§  97.  The  Tri-division  of  Gains  and  Justinian.  A 
last  observation  on  the  tri-division  of  private  law  made 
by  Gaius  and  emphasized  by  Justinian:  "Omne  jus 
quo  utimur  vel  ad  personas  vel  ad'  res  vel  ad  actiones  per- 
tinet."  It  has  been  many  times  pointed  out  that  this 
is  of  no  rational  value,  because  it  is  not  based  upon  the 
essential  character  of  juridical  relations  and  has  the 
vice  of  including  the  family  relations  in  the  personal 
rights,  inheritance  in  the  property  rights,  and  procedure 


208  PRACTICAL  FOUNDATIONS 

in  the  law  of  actions.  The  tri-division,  however,  has 
no  small  historical  value  in  relation  to  the  legal  divi- 
sions of  the  sources  antedating  the  Institutes.  The 
First  Table  of  the  Decemvirs  has  a  certain  number  of 
rules  of  procedure,  "De  in  jus  vocando."  The  Pretorian 
Edicts  begin  with  a  title  on  the  same  subject,  "  De 
actione  danda."  The  Digest  begins  with  some  general 
propositions  of  law  and  then  furnishes  the  nomenclature 
and  description  of  divers  imperial  officers  with  jurisdic- 
tion, coming  thus  to  the  fourth  title  of  the  second  book 
with  the  same  subject  as  the  first  table  of  the  decem- 
virs, "  De  in  jus  vocando."  As  can  be  seen  the  sources 
begin  where  the  tri-division  of  Gaius  and  Justinian  ends. 
Maine  in  his  book  already  mentioned1  pursues  the  simi- 
larities between  these  and  the  monuments  of  primitive 
law  and  shows  the  great  similarity  on  this  point,  because 
the  "Lex  Salica"  begins  speaking  of  citations  and  exhibits 
in  a  court  of  justice.  The  Irish  law  is  marked  by  the 
extraordinarily  large  part  devoted  to  procedure  whose 
principle  is  the  original  act  of  giving  jurisdiction 
through  agreement,  by  transcribing  it  before  a  judge. 
The  codes  of  Manu  and  Nerada  speak  first  of  the 
judges  and  procedure  and  only  later  of  law  and  the 
matters  which  can  be  the  subject  of  litigation.  It  cannot 
be  doubted  that  in  the  beginning  the  constitution  of 
the  judicature  and  procedure  were  things  of  capital  im- 
portance, because  it  was  necessary  to  establish  custom  in 
order  to  bring  men  to  obedience  and  to  form  the  fibres 
of  a  legal  sense.  The  idea  of  punishment  and  the  judge 
had  great  effect  upon  the  consciousness  of  peoples  at  the 
dawn  of  civilization.  When  the  habit  of  obedience  was 
once  formed,  the  control  of  law  established,  the  social 
company  gotten  together,  the  mind  developed,  the 
idea  of  punishment  and  the  judge  became  addictions, 

lCf.  "Early  Law  and  Customs."  cit.  §  39. 


GAIUS  AND  JUSTINIAN  209 

as  Bentham  would  say,  to  the  paragon  of  juridical  rela- 
tions per  se,  a  great  sustainer  of  substantive  law.  The 
tri-division  of  Gaius  represents  this  second  phase  and 
shows  an  idealistic  progress  over  the  old  legal  order. 


210  ANALYSIS  OF  DEFINITIONS 


CHAPTER  VII 

CRITICAL  ANALYSIS  OF  THE  PRINCIPAL 
DEFINITIONS  OF  THE  LAW 

THE  DOCTRINES  THAT  GIVE  PREFERENCE  TO  THE  SENSIBLE 
CONTENT  OF  LAW:  HOBBES,  SPINOZA.  ROUSSEAU,  STUART  MILL 
AND  SPENCER.  — THE  DOCTRINES  THAT  CONSIDER  LAW  AS  AN 
ABSTRACT  RATIONAL  FORM:  KANT,  FICHTE,  AND  HERBART.  — 
THE  DEFINITIONS  OF  KRAUSE  AND  OF  TRENDELEN BURG.  — THE 
TRUTH  OF  THE  DOCTRINES  EXAMINED. 

§  98.  Two  Kinds  of  Definitions.  The  principal  phys- 
iological definitions  of  law  have  reference  either  to  its 
sensible  content  or  its  rational  form.  Among  the  first 
we  must  place  the  definitions  of  Hobbes,  Spinoza, 
Rousseau,  the  utilitarians,  and  the  positivists;  among 
the  second,  those  of  Kant  and  Herbart.1  All  these 
definitions  show  but  one  factor  characteristic  of  the 
idea  of  the  law  fully  understood. 

§  99.  Hobbes  s  Definition  of  the  Law.  Hobbes,  fol- 
lowing Bacon,  states  that  there  can  be  nothing  except 
matter  and  motion;  and  that  thought  is  exchangeable 
with  feeling;  and  that  the  phenomena  of  our  internal 
economy  are  explicable  by  the  laws  of  association. 
His  ethical  concept,  developed  in  "De  Cive"  and  "The 
Leviathan,"  relies  upon  the  tendency  of  self-preservation 
as  the  basis  of  the  duties  of  justice,  gratitude,  and 
piety;  by  the  fulfillment  of  which  duties  the  general 
struggle  of  man  against  man  is  avoided.  In  the  state 
of  nature,  when  everyone  had  a  right  to  everything,  and 

lCf.  §  111  infra. 


SPINOZA'S  DEFINITION  211 

therefore  there  was  a  general  struggle  of  man  against 
man,  force  was  the  method  of  decision.  In  this  state 
there  were  no  duties  because  there  was  no  certainty 
of  reciprocity.  Limitless  fear,  the  tendency  to  self- 
preservation,  and  the  need  for  the  protection  of  honor, 
forced  man  to  a  fundamental  agreement  out  of  which 
arose  an  absolute  power  to  determine  the  honest  and 
just,  which  was  later  given  sanction  through  religious 
beliefs.  Law,  therefore,  according  to  Hobbes,  is  not 
in  itself  an  ethical  principle  but  an  external  means,  like 
ethics,  for  the  termination  of  the  terrible  war  in  which 
all  men  were  engaged.  In  the  last  analysis,  it  brings 
back  the  thought  of  Thrasimachus,  who  reduced  justice 
to  the  power  of  the  strongest  without  understanding  its 
true  value  or  moral  nature.  Plato  opposed  Thrasimachus 
and  showed  that  power  per  se  is  brought  into  play  to 
defend  the  weak,  giving  as  an  example  the  power  of 
the  doctor  over  his  patient  and  the  captain  over  those 
who  are  on  his  ship.  Although  the  theory  of  Hobbes 
shows  a  certain  high  character  in  emphasizing  the  pro- 
tection of  honor,  yet  it  establishes  the  predominance  of 
instinct  aided  by  calculation  in  ethics,  and  derives  law 
from  the  mind  oppressed  by  passion,  endeavoring  to 
build  up  a  legal  union  through  the  blind  influences  of 
weakness  or  fear.  Surely  law  should  not  be  weak,  — 
mere  scales  without  the  sword.  It  should  have  force; 
which  does  not  lead  us  to  believe  that  its  essence  is 
cowardly  intimidation.  Hobbes  deserves  credit,  how- 
ever, for  having  put  in  evidence  the  side  of  law  which 
refers  to  the  protection  of  the  ethical  and  social  elements 
of  human  nature. 

§  100.  Spinoza's  Definition  of  Law.  The  definition 
of  Spinoza,  given  in  his  "Ethica  Ordine  Geometrico 
Demonstrata,"  and  the  "Tractatus  Theologico-Politi- 
cus,"  approaches  on  one  side  very  closely  to  Hobbes 's 


212  ANALYSIS  OF  DEFINITIONS 

theory.  Thought  and  extension  are  unified  by  Spinoza 
in  one  indifferent  and  active  point  in  substance,  as 
the  "causa  sui;"  he  holds  that  all  develops  in  these 
two  infinite  attributes  and  distinguishes  them  from  the 
universe  or  "natura  naturata,"  whose  particular  objects 
are  simple  methods  and  objects  of  imagination.  Sub- 
stance is  God.  Substance  is  absolute  and  cannot  be 
determined  by  anything  except  itself  and  is,  therefore, 
free.  God  alone  is  free,  and  not  man,  who  does  not 
exist  through  the  exclusive  necessity  of  his  nature,  but 
is  a  method  and  as  such  is  limited  and  determined  by 
other  methods.  Man  is  a  natural  force  with  the  illusion 
of  freedom.  Passion,  desire,  and  appetite  rule  his  actions. 
Law  is  not  born  of  reason,  but  of  appetite.  Law  is  the 
power  of  the  nature  of  man,  —  a  force  similar  to  that  by 
which  everything  exists  and  perseveres  in  its  existence. 
The  power  of  nature  is  the  same  as  the  law  of  nature.  God 
can  do  everything  and  has  right  over  everything.  In 
the  human  struggle,  growing  out  of  the  passions,  the 
power  of  one  man  is  neutralized  by  that  of  another  and 
in  this  way  is  annulled ,  and  there  is  no  security.  The  union 
arises  from  the  need  of  saving  one's  own  power  which 
increases  in  the  union  itself  as  the  right  increases.  The 
State,  the  greatest  union,  appears  omnipotent  and  tends 
to  guarantee  secure  coexistence.  So  in  this  theory 
law  is  not  an  ethical  principle  but  grows  out  of  the 
tendency  of  self-preservation  acting  through  force, 
mechanical  causality,  and  natural  power,  aided  by  agree- 
ment. Here,  too,  the  State  is  an  absolute  empire  with 
the  object  of  ending  the  struggle  of  men  divided  by 
cupidity  and  passion.  Natural  power,  as  such,  cannot 
be  law,  although  it  can  accompany  it  in  its  development 
and  render  it  efficacious,  especially  if  aided  by  agreement. 
Law  gains  strength  in  its  concreteness  when  realized  in  a 
union,  "vis  unita  fortior,"  but  Spinoza,  although  self- 


ROUSSEAU'S  DEFINITION  213 

contradictory,  gives  some  conceptions  which  correct  the 
doctrine  before  emphasized  and  fully  conform  to  the 
truth.  It  is  only  just  to  give  them  and  to  notice  them 
as  De  Tullio  did  in  "II  Concetto  del  Diritto  Secondo 
Spinoza,"  because  they  represent  precious  germs  of 
truth.  If,  on  one  hand,  Spinoza  denies  the  freedom  of 
man,  on  the  other  he  is  constrained  to  admit  it,  because 
man  is  body  and  mind,  and  as  mind  is  not  destructible, 
participating  in  the  eternity  of  substance,  referring  all 
things  to  God,  and  thinking  them  in  Him.  He  is  cap- 
able of  controlling  his  passions,  desires,  and  appetites, 
and  approaches  nearer  to  God  the  more  he  extends  his 
control  over  them  and  raises  and  purifies  his  will.  At  this 
point  man  attains  his  end;  his  "acquiescentia"  and  his 
will  are  free  as  those  of  God.  "Hinc  sequitur  quod 
Deus  quatenus  seipsum  amat  homines  amat  et  conse- 
quenter  quod  amor  Dei  erga  homines  et  mentis  erga 
Deum  amor  intellectualis  unum  et  idem  est."  The 
same  conception  of  the  freedom  of  the  soul  and  of  its 
union  with  God  is  developed  by  Bruno  in  "Eroici 
Furori."  Law,  in  this  new  phase  of  Spinoza's  thought, 
is  not  a  natural  and  mechanical  power  but  a  "potentia" 
by  which  man  approaches  his  rational  end,  which  end  is 
attainable  in  the  common  life  and  the  State,  which  is  a 
communion  founded  on  reason.  "Animorum  unio  con- 
cipi  nulla  ratione  posset  nisi  civitas  id  ipsum  maxime 
intendat  quod  sana  ratio  omnibus  hominibus  utile  esse 
docet."  Spinoza  adds,  "finis  ergo  rei  publicse  revera 
libertas  est." 

§  101.  Rousseau's  Definition  of  Law.  Rousseau,  in 
"Le  Contrat  Social,"  starts  out  with  the  principle  of 
inalienable  liberty.  With  such  a  principle  he  resolves 
the  problem  of  finding  a  kind  of  political  union  in  which 
freedom  is  not  alienable  and  each  man  in  obeying 
the  State  obeys  himself  with  a  complete  and  recipro- 


214  ANALYSIS  OF  DEFINITIONS 

cal  renunciation  of  all  individual  rights  in  favor  of  the 
community;  whence  the  general  will  to  which  the  will 
of  all  or  the  particular  wills  are  subjected  by  free 
agreement,  and  the  inalienable,  indivisible,  and  non- 
representative  sovereignty  are  formed.  The  general 
will  manifested  by  the  majority  of  votes  is  the  source 
of  law,  and  therefore  law  is  reducible  to  the  decision 
of  the  majority.  Now  the  general  will  of  Rousseau  not 
being  intrinsically  connected  with  reason,  the  supreme 
ethical  idea  becomes  license  or  the  pleasure  of  the  mob, 
very  different  from  that  constant  measure  or  proportion 
of  advantages,  founded  on  the  moral  nature  of  man, 
which  is  law.  Under  this  aspect,  Rousseau's  definition 
has  to  do  with  the  sensible  content  of  the  law.  What  is 
true  in  this  definition  is  that  the  "reipublicse  sponsio," 
as  the  Romans  say,  when  they  declare  the  conception 
of  the  law  or  the  will  of  the  greater  number,  is  the  con- 
crete and  effective  expression  of  the  law  in  the  life  of 
the  people. 

§  102.  The  Utilitarian  Definition  of  Law.  The 
Sophists,  Eudoxus,  Epicurus,  Helvetius,  Bentham,  and 
Stuart  Mill  are  the  greatest  representatives  of  utili- 
tarianism. They  try  to  find  moral  truths  and  justice  in 
pleasure  and  pain  and  to  reach  the  general  interest  by 
starting  out  with  particular  interests.  Hobbes  and 
Locke  showed  the  same  tendencies  although  they  are 
not  usually  cited  as  utilitarian  philosophers.  It  is  to 
Stuart  Mill  that  we  owe  a  truly  scientific  exposition  of 
this  system  which  he  adopted.  He  denies  in  his  book 
"Utilitarianism"  that  morality  is  based  on  rational  and 
a  priori  elements,  and  follows  the  empirical  and  induc- 
tive theory,  based  on  the  sense  of  pleasure.  When  this 
is  generalized,  it  constitutes  the  idea  of  utility;  the  only 
object  which  experience  adds  to  conduct  is  happiness,  or 
an  existence  free  from  pain  and  rich  in  enjoyments 


UTILITARIAN  DEFINITION  215 

both  qualitatively  and  quantitatively.  The  proof  of 
the  quality  of  enjoyments  and  the  measure  of  their 
quantity  are  found  in  the  preference  given  by  those 
who,  through  opportunity  and  their  own  aptitude,  are 
best  furnished  with  means  of  comparison.  Happiness 
is  the  true  and  only  good.  Virtue  itself  is  first  desired 
as  a  means  of  happiness  and  then  is  desired  on  its  own 
account,  in  the  same  way  that  man  begins  by  doing  a 
kindness  to  his  fellow-being  for  recompense  but  later 
goes  on  through  habit.  Complete  happiness,  however, 
cannot  be  attained  except  by  the  accord  of  private  and 
public  interest.  Individual  utility  cannot  be  developed 
largely  or  securely  without  the  aid  of  one's  fellow- 
beings,  without  the  help  of  all.  General  utility  is  the 
condition  necessary  for  the  development  of  the  private 
utility,  and  is  at  the  same  time  its  protection.  From 
this  comes  the  distinction  of  good  and  bad  actions, 
depending  on  whether  they  promote  or  oppose  the 
happiness  of  all.  This  knowledge  grows  gradually,  and 
in  the  same  way  moral  sentiment  makes  its  appearance, 
whose  elements  are  the  instinctive  desire  to  live  in  har- 
mony with  one's  fellow-beings,  the  conception  of  human 
solidarity  and  of  the  impossibility  of  an  egoistic  state, 
the  habit  of  cooperation  with  others,  and  the  influence 
of  civilization.  In  civilization  are  found  the  principle 
of  obligation  and  the  basis  of  natural  law.  The  idea  of 
utility  is  not  contradictory  to  that  of  justice,  but  the 
latter  is  part  of  the  first.  The  etymology  of  the  word 
justice,  "jussum,"  shows  that  the  genesis  of  such  a  notion 
is  legislative  prescription.  The  idea  of  a  legal  consti- 
tution precedes  the  idea  of  the  just,  whose  content 
is  the  most  stringent  and  imperative  utility.  It  is  true, 
therefore,  that  all  cases  of  justice  are  cases  of  utility, 
but  that  the  most  impellent  of  them  are  those  that  are 
derived  from  the  needs  of  man.  The  idea  of  justice 


216  ANALYSIS  OF  DEFINITIONS 

includes  three  ideas,  those  of  a  certain  conventionality 
of  action,  of  law  which  punishes  unconventional  actions, 
and  of  a  right  given  and  protected  by  law  to  certain 
persons  with  a  penalty  for  its  violation.  To  this  idea 
of  justice,  there  corresponds  a  complex  sentiment,  the 
resultant  of  the  impulse  of  self-defense  and  the  tendency 
to  sympathy.  The  first  impulse  gives  rise  to  resentment 
for  an  offence  offered  us,  the  second  causes  a  resentment 
for  offences  offered  to  others.  We  want  the  offender 
himself  to  suffer  the  harm  that  he  has  caused.  Such 
sentiments,  together  with  the  three  ideas,  determine  the 
penal  restrictions  of  actions  not  conforming  to  general 
and  particular  utility. 

§  103.  Criticism  of  Stuart  Mill's  Definition.  The 
radical  vice  of  this  theory  consists  in  deriving  in  logic 
everything  by  induction  and  in  ethics  everything  from 
custom.  It  is  well  known  that  induction  does  not  ex- 
plain the  necessity  or  universality  of  theoretical  prin- 
ciples, and  that  habit  is  always  a  mechanical  and 
unconscious  conjunction  of  acts  and  cannot  be  pro- 
ductive of  duty  or  ethical  necessity.  The  pursuit  of 
virtue  for  itself,  disinterestedness  and  sacrifice,  are  in 
Stuart  Mill's  mind  the  result  of  mental  habits.  An 
obligation  is  the  result  of  the  continuous  and  energetic 
association  of  all  the  elements  that  compose  moral 
sentiment.  The  accord  between  one's  own  advantage 
and  that  of  another  and  of  all,  is  the  result  of  the  same 
cause.  The  exclusive  principle  of  ethics  is  the  internal 
association  of  mental  states,  unaccompanied  by  intrin- 
sic bonds  of  reason  and  regulated  only  by  tendency 
to  pleasure  and  aversion  to  pain.  In  fact,  such  spiritual 
enjoyments,  as  knowledge,  freedom,  and  independence, 
are  not  desired  for  their  substantial  advantage  but  for 
their  emotional  force  and  likelihood  of  increasing  one's 
pleasures.  It  seems  that  the  preference  of  such  advan- 


CRITICISM  OF  MILL'S  DEFINITION       217 

tages  is  for  Stuart  Mill  a  question  of  taste,  which  can 
be  decided  only  by  persons  who  have  special  experience 
in  all  kinds  of  enjoyment.  We  may  note  that  mental 
activities,  cultivated  for  the  enjoyment  which  they 
bring,  can  be  corrupted  because  one  is  led  to  think  too 
much,  since  thought  brings  pleasure.  It  is  necessary, 
however,  to  remember  that  Mill  says  clearly  in  places 
that  the  reason  of  the  preference  lies  in  the  idea  or 
sentiment  of  human  dignity;  that  all  men  are  able  to 
appreciate  and  value  these  advantages,  if  they  think. 
By  such  a  confession,  Mill  leaves  his  system  and 
shows  an  incoherence  in  introducing  a  principle  supe- 
rior to  empirical  eudemonism.  But  Mill's  thought 
wavers  on  this  point,  and  even  the  value  of  the  idea  of 
human  dignity  and  higher  advantages  depends  upon 
the  quality  of  sentiment;  and  this  happens  in  the  major- 
ity of  cases ;  therefore  the  incoherence  is  not  permanent. 
For  Mill,  the  accord  between  private  and  general  utility 
is  not  a  fact,  as  Bentham  thought,  but  a  need  created 
by  an  association  of  internal  states,  the  basis  of  a  pro- 
gressive mental  habit.  The  obligation  of  seeking  the 
good  of  all,  together  with  one's  own  good,  has  no  other 
base,  and  consequently  moral  and  rational  necessity  are 
exchanged  for  psychological  necessity.  But  the  problem 
of  the  passage  from  one's  own  good  to  that  of  another 
remains  still  unsolved,  because  pleasure,  from  which,  by 
generalization,  the  idea  of  utility  arises,  is  a  state 
belonging  absolutely  to  the  person  who  feels  it.  Pleas- 
ure is  unstable  and  most  variable,  subject  to  indefinite 
modifications  of  the  nervous  system  and  of  the  funda- 
mental senses.  One  man's  pleasure  is  not  another's, 
and  the  same  pleasure  enjoyed  repeatedly  by  the  same 
subject  is  not  identical.  In  this  way  there  is  no  passage 
from  egoism  to  altruism.  Neither  is  it  true  that  the 
whole  appetitive  nature  of  man  is  concentrated  in 


218  ANALYSIS  OF  DEFINITIONS 

pleasure  alone  and  the  original  selfish  tendencies,  for 
instinct  is  an  activity  not  preceded  by  pleasure  when  it 
first  appears,  and  the  inclination  to  live  and  re-live  in 
others  through  love  was  never  lacking  to  man.  Law 
is  the  child  of  positive  statutes  and  penalties  for  Mill, 
although  its  content  emphasizes  a  superior  principle. 
Imperative  utility  should  in  .the  last  analysis  be  recog- 
nized by  reason,  because  only  the  latter  is  competent 
to  fix  the  "suum  necessarium."  But  in  the  system  of 
Mill  the  most  stringent  utility  is  valued  by  the  quantity 
and  degree  of  feeling  and  is  the  result  of  experiment 
and  positive  calculation  on  the  part  of  the  legislator. 
Of  the  two  elementary  and  natural  sentiments  which 
compose  justice,  neither  contains  the  exact  measure  or 
proportion,  which  constitutes  law.  The  selfish  impulse 
to  render  ill  for  ill  is  certainly  not  moral,  neither  is 
sympathy  based  on  a  constant  and  equal  criterion 
varying  in  degree  according  to  the  relations  of  its  sub- 
ject with  the  person  offended. 

§  104.  Utilitarianism  is  the  Material  of  Law.  With 
all  these  vices,  utilitarianism  contains  part  of  the  truth, 
because  utility,  if  not  the  principle,  is  certainly  the  con- 
tent or  matter  of  law,  as  the  Italian  school  of  philso- 
phers  and  jurists  have  always  taught.  The  Roman 
jurisconsults  stated  that  "utilitas"  is  the  substratum  of 
the  "jus  civile,"  and  the  "jus  publicum"  is  distinguished 
from  the  "jus  privatum"  because  in  the  first  the  "pub- 
lica  utilitas"  is  important  and  in  the  second  the  "utilitas 
singulorum,"  but  "utilitas"  according  to  Pedius  it  only 
"bona  occasio  juris,"  since  the  base  of  the  law  is  the 
"natura  rerum,"  the  "natura  hominis,"  and  the 
"naturalis  ratio."  Among  the  Romans,  law,  although 
conceived  in  this  manner  more  practical  than  specula- 
tive, preserved  a  certain  ethical  character  in  all  its  phases, 
which  was  derived  from  the  conception  of  the  "aequum 


MAINE'S  CRITICISM  219 

bonum,  equitas,  bona  fides,  boni  mores,"  and  on  the 
nature  of  some  of  the  institutions,  such  as  that  of  the 
"praetura"  and  "censura  morum."  The  scholiasts  say 
that  law  should  develop  the  "bonum"  of ''utile  commune." 
In  Bruno's  mind,  it  should  be  lightened  by  the  divine 
sun  of  truth  and  should  tend  towards  the  useful.  Vico 
considers  law  as  a  proportion  of  utility.  Romagnosi, 
agreeing  with  the  Genovesi,  Spedalieri,  and  Lampredi, 
defines  law  as  a  system  of  utility  in  conformity  with 
moral  order.  Rosmini  looks  upon  it  as  a  eudemonistic 
faculty  protected  by  moral  laws. 

§  105.  Maine's  Criticism  of  Utilitarianism.  Maine 
disagrees  with  the  historical  theory  of  Bentham  accord- 
ing to  which  the  different  societies  modified  their 
laws  in  conformity  to  their  changed  ideas  of  general 
utility,  because  utility  is  a  potent  but  not  the  only 
cause  of  change,  which  is  effected  by  the  influence  of 
new  ideas  and  sentiments  which  are  distinct  from  utili- 
tarian conceptions  and  tendencies.  The  criticism  of 
Maine  that  new  ideas  and  sentiment  are  referable  always 
to  a  new  form  of  understanding  and  conception  of 
utility  is  true,  and  bears  consideration  and  the  light  of  a 
strong  examination.  Certainly  all  men  and  societies 
desire  the  good,  and  if  the  good  is  wanted  by  itself  and 
confused  with  the  useful,  there  would  be  no  method 
of  distinguishing  and  recognizing  that  special  system 
called  utilitarianism.  Utilitarianism  is  a  kind  of  hedon- 
ism. It  understands  the  good  only  or  principally  in  its 
sensible  aspect  and  measures  it  by  the  quality  and 
quantity  of  the  consequence  produced  by  its  effectuation. 
Maine  disagrees,  on  other  grounds',  with  the  utilitarianism 
of  Bentham  as  an  ethico-juristic  system,  and  believes 
that  its  adoption  in  the  realm  of  legislation  implies  no 
necessity  to  receive  it  in  that  of  morals;  that  one  can 
be  utilitarian  in  legislation  and  non-utilitarian  in  morals, 


220  ANALYSIS  OF  DEFINITIONS 

contradiction  or  no  contradiction.  But  here  Bentham 
is  right  and  Maine  is  wrong.  Nevertheless,  it  can  be 
observed  that  the  non-utilitarian  in  ethics  is  obliged 
in  the  study  of  law  by  the  very  nature  of  the  object  of 
his  attention  to  regard  utility  as  the  material  and  the 
"bona  occasio  juris." 

§  106.  Spencer's  Evolution.  Spencer  in  "The  Data 
of  Ethics"  admits  with  Bentham  and  Stuart  Mill 
that  the  end  of  conduct  is  happiness  or  utility,  but 
does  not  follow  their  method.  The  method  of  these 
two  philosophers  is  inductive.  But  Spencer  points 
out  that  the  norms  of  conduct  will  never  be  scientific 
if  we  cannot  learn  by  deduction  the  method  and 
reason  why  one  fact  is  the  necessary  derivative  of 
another.  Experience  teaches  that  some  actions  bring 
good  and  others  evil,  and  indicates  the  norms  of  action, 
but  it  tells  nothing  about  the  method  or  reason  for  this 
derivation.  We  must  start  from  a  principle  upon  which 
we  can  base  all  the  facts  of  the  physical  and  moral  life 
of  man  and  all  living  beings.  This  principle  is  the 
persistency  of  force.  Every  being  tends  to  preserve 
its  share  of  force  and  to  react  against  the  elements 
of  disturbance.  The  capacity  of  beings  to  assemble  and 
get  enjoyment  grows  in  direct  ratio  to  their  capacity  of 
self-adaptation  to  external  circumstances.  The  adapta- 
tion is,  however,  the  law  of  conduct.  The  end  of  all  the 
acts  of  sensate  beings  is  the  conservation  of  their  indi- 
vidual and  racial  life  and  coexistence.  Conduct  cannot 
be  perfect  in  respect  to  the  first  two  ends  if  it  is  not  so 
in  respect  to  the  third,  which  represents  the  mutual  aid 
of  one's  fellow-beings.  Only  in  the  human  race  is  the 
harmony  of  these  three  ends  fully  developed,  and  so 
the  accord  between  the  individual  and  the  general  good 
is  an  unavoidable  consequence  of  biological  laws.  Man 
and  his  conduct  are  the  last  product  of  many  adaptations 


SPENCER'S  EVOLUTION  221 

between  internal  and  external  forces.  No  one  can  marvel 
at  it  when  bethinks  how  closely  ethical  and  physical  laws 
are  bound  together.  From  impressions  are  born  sensations 
and  reflexive  actions;  the  sensations  are  pleasant  or 
painful,  and  man  as  a  sensate  being  tends  to  prolong 
the  duration  of  the  former  and  stop  the  latter.  It  was 
found  pleasant  to  live  together,  so  the  great  utility  of 
it  was  discovered.  The  social  inclination  was  formed, 
and  through  long  custom  and  heredity  it  was  trans- 
muted into  an  instinct.  From  the  social  instinct 
come  all  the  emotions  known  under  the  general 
name  of  sympathy.  Sympathy  is  agreement  and 
cooperation  which  renders  the  greatest  development 
of  individual  existence  possible.  From  such  an  im- 
pulse arise  actions  which  demand  complex  representa- 
tion, while  actions  born  of  selfishness  have  immediate 
objects;  that  is,  the  enjoyment  of  present  pleasure  and 
the  shunning  of  imminent  ills,  and,  therefore,  presuppose 
simple  representation.  To  the  series  of  selfish  motives 
dependent  upon  social  conditions,  such  as  the  fear  of 
revenge,  law,  or  public  opinion,  there  comes  another 
order  of  motives  consisting  in  the  consequences  of  actions 
not  accidental  or  extrinsic  but  natural:  for  example, 
grief,  shame,  the  harm  of  one's  neighbor,  his  well- 
being,  without  regard  to  one's  own  utility.  The  com- 
plexity of  these  motives  of  growth,  habit,  and  heredity 
constitutes  the  moral  sentiment  which  is  free  of  the 
motives  which  are  founded  on  a  kind  of  authority. 
Sympathy  increases  the  more  we  see  the  pleasures  of 
our  fellow-beings  and  the  more  society  changes  from 
warlike  to  industrial.  In  the  first  ages  society  was  pre- 
occupied with  its  own  existence  and  took  only  second- 
ary care  of  the  development  of  the  individual,  so  busy 
was  it  in  the  war  and  struggle  for  self-preservation. 
Later  it  became  industrial,  since  its  life  was  less  threat- 


222  ANALYSIS  OF  DEFINITIONS 

ened  and  its  existence  assured;  and  it  now  has  for  its 
immediate  purpose  the  protection  of  individual  activi- 
ties in  the  diverse  spheres  of  labor.  Thus  human  con- 
duct ends  by  being  governed  by  an  egoistical  altruism. 

§107.  Criticism  of  Spencer's  Theory.  The  first  obser- 
vation which  occurs  to  the  student  of  Spencer's  theories 
is  that  inductive  or  deductive  utilitarianism  is  sub- 
stantially the  same,  showing,  that  is,  a  prevalence  of 
the  inclination  of  the  senses  over  reason  contrary  to 
the  intrinsic  order  and  real  value  of  beings.  If  it 
meets  the  approval  of  many,  it  is  because  it  conforms 
more  with  what  men  are  wont  to  be  than  with  what  they 
should  be.  The  simple  appetitive  tendency  to  the  pur- 
suit of  pleasure  and  avoidance  of  pain  can  never,  through 
habit,  heredity,  or  in  general  by  the  greatest  variable 
adaptation,  be  changed  into  moral  law  and  obligation. 
In  the  first  place,  all  these  factors  lack  the  character 
of  necessity  and  universality  of  ethical  law  and  obliga- 
tion; characteristics  which  mere  reflection  cannot  give 
and  which  are  not  found  by  the  mind  in  searching 
the  depth  of  its  essence.  Association  and  adaptation 
do  not  lead  us  out  of  the  sphere  of  psychological 
mental  necessity.  And  so  in  Spencer's  system  we 
can  note  what  we  have  already  pointed  out  in  the 
theory  of  Mill:1  that  the  obligation  depends  upon  the 
greater  efficiency  of  emotions,  more  complex  and  more 
representative;  that  is,  on  the  quality  of  sentiment. 
Adaptation  of  itself  cannot  be  the  supreme  law  of  human 
conduct,  because,  though  it  is  true  that  morality  is 
developed  in  the  common  life  and  should  feel  its  influ- 
ences, it  is  none  the  less  true  that  it  remains  morality 
and  is  governed  by  the  principles  of  the  good  as  shown 
by  reason,  which  furnishes  the  measure  within  which  the 
individual  advantage  can  be  reconciled  with  general 
lCf.  §  103  ante. 


CRITICISM  OF  SPENCER'S  THEORY      223 

utility,  considering  the  special  conditions  of  the  indi- 
vidual and  society.  The  limits,  however,  cannot  be  fixed 
entirely  by  circumstances;  neither  can  they  be  entirely 
external.  The  doctrine  of  adaptation  is  not  capable  of 
developing  the  real  ethical  initiative  which  foreruns  the 
ages  and  emphasizes  higher  ideals  to  be  effected,  be- 
cause it  has  a  political  character  and  proclaims  conduct 
good  which  tends  to  another's  happiness  in  a  measure 
compatible  with  the  individual  interest  in  the  given 
social  conditions.  Neither  does  it  solve  the  problem  of 
the  change  of  pleasure  into  general  utility,  because 
pleasure  preserves  always  its  selfish  and  exclusive  char- 
acter, which  cannot  be  tempered  or  modified  except  by  a 
higher  principle.  Spencer  renders  the  accord  between 
the  two  antagonistic  poles  of  private  and  public  inter- 
est objective,  and  transforms  the  interweaving  of  the 
three  ends  of  the  preservation  of  the  individual,  the 
development  of  the  species,  and  coexistence,  into  a 
natural  law  of  life.  But  he  does  not  succeed  by  this  in 
creating  the  ethical  necessity  which  is  the  only  pro- 
duction of  thought.  In  order  to  attain  the  idea  of 
duty  and  right  the  reason  must  advance  and  develop, 
and  it  cannot  be  converted  or  debased  into  a  calcula- 
tion of  utility  dependent  upon  the  tendency  of  the 
senses.  All  the  utilitarians,  modern  positivists,  and 
materialists  place  the  foundation  of  law  in  the  fact  of 
life,  in  the  organic  demand  of  the  species  and  the  social 
instinct,  and  do  not  succeed,  therefore,  in  giving  a  true 
explanation  of  its  principle.  Nobody  doubts  that  the 
needs  of  life,  as  well  as  the  useful,  are  a  matter  of  morals 
and  law,  and  that  social  instinct,  common  belief,  habit, 
and  heredity,  which  form  the  great  connective  tissue 
of  civil  existence,  are  the  conditions  of  justice  and  virtue. 
The  question  is  of  the  form  of  these  elements  and  their 
principles,  which  are  not  found  outside  of  reason.  The 


224  ANALYSIS  OF  DEFINITIONS 

ancients  talked  about  a  primal  law  intended  for  the 
satisfaction  of  the  immediate  needs  of  life,  for  self- 
preservation,  the  union  of  man  and  woman,  procreation, 
and  the  support  of  children.  In  the  primal  law,  that 
is,  that  of  the  "antecedents  of  nature,"  according  to  the 
Stoics,  man  wishes  his  own  existence,  as  Vico  says. 
They  emphasize,  however,  a  "secondary  or  derivative 
law,"  the  same  as  "consequents  of  nature"  of  the  Stoics, 
in  which  reason  was  the  controlling  faculty  and  man 
desires  knowledge,  as  Vico  says.  Whence  this  part  of 
natural  law  (it  is  the  Neapolitan  philosopher  whom  we 
quote)  is  more  immediate  and  rules  the  first,  giving  it  its 
firmness.  In  this  distinction,  we  can  see  again  the 
Aristotelean  difference  between  what  is  first  in  respect  to 
us  and  what  is  first  in  nature.  Sense  is  first  in  respect 
to  us,  and  reason  in  respect  to  nature.  Now  we  must 
find  the  principle,  the  fundamental,  which  is  first  per  se. 
§  108.  Spencer's  Sub-human  Justice.  Spencer  has 
developed  his  ethico-juristic  conception  in  a  recent 
book,  "Justice."  Following  his  theory  of  connecting 
moral  laws  with  the  most  general  laws  of  the  cos- 
mos, and  of  rendering  ethics  more  deductive,  he  begins 
by  speaking  of  a  morality  of  animals  and  a  sub- 
human justice.  Moral  and  human  conduct  is  a  part 
of  conduct  in  general,  that  is,  of  the  sum  total  of 
the  acts  of  various  beings  which  are  adapted  to 
their  own  purposes.  Among  animals,  the  more  perfect 
conduct  tends  to  a  longer,  more  ample  and  complete  life, 
and  is  connected  with  the  two  principles  which  insure 
the  continuance  of  the  species.  The  first  is  the  natural 
protection  of  offspring  not  able  to  take  care  of  them- 
selves. The  second  is  that  the  adult  himself  should 
realize  all  the  advantages  and  disadvantages  of  his 
acts.  Sub-human  justice  means  that  every  individual 
is  subject  to  the  consequences  of  his  nature  and  con- 


SPENCER'S  SUB-HUMAN  JUSTICE        225 

dition.  It  advances  as  organization  progresses.  The 
primal  law  for  all  being  is  that  of  the  relationship 
between  conduct  and  its  consequences.  Then  comes 
the  other  law  (fundamentally  the  same)  of  common 
life,  since  it  prescribes  limitations.  The  second  law 
orders  that  the  acts  through  which  an  individual 
seeks  advantages  and  avoids  disadvantages  should  be 
limited  by  the  necessity  of  leaving  the  way  free  to 
similar  acts  on  the  part  of  his  associates.  There  is 
a  third  law  which  restricts  the  application  of  the  first 
and  in  certain  circumstances  sacrifices  the  individual 
for  the  species.  Human  justice  is  the  development  of 
sub-human  justice.  Fundamentally  and  essentially  both 
are  of  the  same  nature,  parts  of  a  whole.  In  general, 
justice  is  characterized  by  self-subordination  to  the 
bonds  of  relationship,  of  social  limitations,  and  of  the 
health  of  the  species  or  community.  Among  the  social 
sentiments,  which  are  the  product  of  evolution,  is  found 
the  sentiment  of  justice.  Justice  is  the  extirpation 
of  selfish  sentiments  which  arise  when  an  animal 
resists  the  restrictions  put  upon  the  acts  of  his  spon- 
taneous life,  and  can  become  the  object  of  altruistic 
sentiments  which  presuppose  the  more  or  less  ample 
development  of  sympathy  and  are  connected  more 
properly  with  the  regime  of  voluntary  cooperation. 
But  before  the  development  of  the  true  altruistic  senti- 
ment of  justice  there  are  sentiments  "pro-altruistic" 
that  constitute  the  conditions  of  its  development  and 
contain  its  germs;  for  example,  the  fear  of  retaliation, 
hate,  revenge,  and  pain.  The  sentiment  of  justice 
cannot  fail  to  have  a  close  relation  with  the  idea  of  jus- 
tice which  is  its  criterion.  Such  an  idea  has  two  elements, 
one  positive  and  one  negative.  The  first  is  freedom, 
which  creates  inequality,  because  every  individual 
should  be  treated  unequally  if  he  has  a  different  degree 


226  ANALYSIS  OF  DEFINITIONS 

of  merit;  the  negative  element  is  the  limitation  of  the 
sphere  of  everyone's  activity,  by  which  every  individual 
is  considered  as  the  equal  of  every  other.  The  funda- 
mental principles  of  law,  which  are  entirely  included 
by  the  idea  of  justice,  are  not  fruits  of  induction,  but 
are  a  priori  truths  —  experience  inherited  from  hundreds 
of  generations.  Empirical  utilitarianism  exaggerates  the 
force  of  induction  and  cannot  grasp  any  of  its  primal 
ideas,  which  it  is  forced  to  presuppose.  The  idea  of  the 
sum  total  of  happiness  to  which  individual  and  collective 
man  should  tend,  and  that  of  the  equal  rights  of  all  to 
happiness,  are  not  deductive  but  a  priori.  Positive  laws 
are  made  on  these  principles  of  justice. 

§  109.  Criticism  of  Spencer's  Sub-human  Justice. 
Spencer's  "Justice"  does  not  alter  his  theories  as  con- 
tained in  "The  Data  of  Ethics."  Consequently  the 
criticisms  apply  equally  to  both  books.  If  obligations 
cannot  be  born  of  appetitive  tendency,  habit,  heredity, 
or  psychological  association,  it  surely  cannot  be  derived 
from  animality.  A  moral  animal  is  not  conceivable,  be- 
cause an  animal  does  not  understand  an  obligation  with 
its  necessity  and  universality,  which  are  born  only  of 
reason.  It  is  the  reason  of  man,  furnished  with  knowl- 
edge and  free  will,  that  recognizes  the  coordination  of 
individuals  and  the  necessities  of  life,  conceived  even  by 
Spencer  as  the  substratum  of  morals  and  law.  Obliga- 
tion is  the  very  necessity  of  things  known,  valued,  and 
desired  by  man.  What  is  called  the  duty  of  the  animal 
is  nonsense,  because  the  animal  has  no  true  knowledge 
or  free  will.  By  this  loose  expression  the  organic  demand 
or  the  effect  of  habit  and  domestication  is  of  ten  described. 
There  is  no  sub-human  justice,  because  justice  is  a 
virtue.  It  is  a  habit  of  realizing,  through  knowledge  and 
free  will,  the  rational  law  of  the  proportion  of  advan- 
tages belonging  to  human  nature  considered  per  se  and 


SPENCER'S  SUB-HUMAN  JUSTICE        227 

in  its  methods  of  individualization,  regarded  in  individual, 
social,  and  collective  forms.  Obligation  and  justice 
are  facts  brought  out  in  evolution  and  do  not  effectively 
appear  before  man  and  human  social  life.  Both,  as 
emergent  and  not  resultant  facts,  are  specific  products; 
they  have  their  own  characters  and  principles,  which 
only  in  an  abstract  and  indeterminate  manner  can  be 
reduced  to  the  common  characters  and  universal  laws 
of  the  cosmos.  The  egoistic  and  altruistic  senti- 
ments of  justice  are  founded  on  human  nature  as  the 
two  elements  of  the  idea  of  justice,  which  are  freedom 
and  the  reciprocal  limitations  of  personal  activities,  are 
founded  on  it.  The  feeling  of  an  animal  impeded  in 
the  development  of  its  energies,  and  the  indignation  of  a 
man  deprived  of  his,  are  different.  Different  is  the  altru- 
istic sentiment  of  species  and  the  sentiment  which 
arises  from  the  knowledge  of  the  identity  of  nature  be- 
tween men  and  the  bonds  of  union;  that  is,  the  coopera- 
tion of  intellects  and  wills.  Explicable  freedom  is  cer- 
tainly a  principle  distinct  and  more  elevated  than 
animal  energy,  than  sense  of  self  and  spontaneity. 
The  restrictions  or  limitations  on  the  life  of  members 
of  an  animal  species  are  not  at  all  like  the  system  of 
bonds  inherent  in  human  existence.  Spencer  makes  the 
mistake  of  confusing  facts  and  ideas  which  belong  to 
different  orders  of  evolution  because  he  cannot  see  the 
specific  differentiation  of  the  evolutionary  movement. 
He  confuses  organic  demands,  blind  and  fatal  tendencies 
of  nature,  and  strictly  natural  adaptation,  with  duties, 
virtues,  and  purely  human  facts.  The  characters  and 
potentialities  of  human  nature  are  placed  by  him  in  the 
anterior  grades  of  evolution.  He  compares  the  instinc 
tive  protection  of  offspring  and  the  conduct  of  the  adult 
animal,  gifted  with  foresight,  with  the  intelligent  love 
for  one's  descendants  raised  to  a  duty,  and  with  freedom, 


228  ANALYSIS  OF  DEFINITIONS 

the  source  of  responsibility.  We  can  observe  here  that 
abuse  of  analogy  and  arbitrary  anticipation  of  elements 
and  attitudes  which  we  have  noted  on  the  subject  of 
the  explanation  of  knowledge.1  Finally  we  must  point 
out  that  Spencer  goes  back  to  the  definition  of  law  given 
by  Kant.  He  says  that  the  coincidence  of  his  thought 
with  Kant's  is  entirely  due  to  chance.  In  1850,  when 
he  wrote  "Social  Statics,"  he  did  not  know  of  Kant's 
book  on  the  principle  of  law,  whose  existence  he  dis- 
covered many  years  after.  The  only  real  difference 
between  Kant  and  Spencer  is  this:  Kant  does  not  look, 
in  his  desire  to  define  law,  beyond  the  abstract  con- 
ception of  the  human  world,  while  Spencer  discovers  a 
moral  animal  and  a  sub-human  justice.  Kant  could 
in  no  wise  recognize  this  projection  of  ethics,  as  we  shall 
see  later  on.2 

§  110.  Reason  is  a  Result  of  Evolution.  There  can 
be  no  doubt  that  morals  presuppose  biology  and  asso- 
ciation. Association  raises  the  powers  of  life  and 
becomes  the  immediate  condition  of  a  fact  of  a 
higher  order;  that  is,  of  historical  development.  His- 
tory is  the  life  of  the  human  race.  It  is  the  evolution 
of  the  nature  of  man  in  that  it  leads  thought,  the  great 
dynamic  factor  in  the  world  of  nations.  Now  adapta- 
tion to  existent  social  conditions  is  not  all  of  ethics, 
even  for  the  positivists,  who  recognize  historical  progress 
and  a  tendency  to  come  nearer  to  the  idea  of  the  per- 
fection of  human  life.  Ethics  for  them  are  a  practical 
science  which  seeks  not  only  the  laws  of  moral  facts  but 
determines  the  best  means  of  modifying  them  in  order 
to  attain  a  perfection  not  yet  existing.  This  renova- 
tive  and  perfective  work  of  ethics  represents  emancipa- 
tion from  nature  and  from  the  control  of  existing  facts, 

lCf.  §28  ante. 
"Cf.  §  lllinfra. 


KANT'S  DEFINITION  OF  LAW  229 

as  Angiulli  points  out.  It  makes  for  freedom.  Mechani- 
cal necessity  and  chance  take  away  all  moral  value  from 
our  actions.  In  the  very  conception  of  a  scientific  de- 
terminism is  included  the  power  of  inherent  variation. 
Such  a  power  is  at  first  natural  and  then  is  transformed 
into  conscious  activity  directed  towards  an  end  in  the 
progress  of  social  life.  As  historical  experiences  and  the 
influences  of  culture  increase,  the  power  of  changing 
the  motive  of  actions  by  valuing  the  present  state  in 
respect  to  an  ideal  future  increases  both  in  the  indi- 
vidual and  in  society.  And  here  is  the  real  root  of 
freedom.  But  freedom  is  not  fully  understood  without 
cognitive  activity  and  reflection,  which  constitute  and 
increase  the  proper  energy  of  the  subject  in  moments  of 
impulse.  Freedom  is  based  on  reason  which  is  explained 
by  the  accumulation  of  historical  experiences  but  which 
is  not  their  simple  result  or  sum. 

§  111.  Kant's  Definition  of  Law.  Kant's  definition 
of  law  is  one  of  those  which  refer  to  the  abstract  ra- 
tional form,  as  we  have  said  before,1  and  we  will 
now  add,  those  of  his  follower  Fichte,  and  of  Herbart, 
belong  to  this  class.  Kant  points  out  that  knowledge 
is  a  complex  fact,  a  resultant  of  sensible  and  intellectual 
elements,  and  that  it  must  be  considered  in  its  integrity 
and  not  in  one  of  its  parts,  as  Locke  and  Leibnitz  have 
regarded  it.  Locke  desires  to  solve  the  problem  of 
knowledge  keeping  but  one  part,  sense,  in  view.  Leib- 
nitz, on  the  other  hand,  bases  all  his  theory  on  the 
other  factor  of  mind.  Knowledge,  or  experience,  is  pos- 
sible according  to  Kant  by  means  of  simple  concepts 
applicable  to  empirical  intuitions.  These  concepts  are 
not  innate,  beautiful  and  made,  but  constitute  original 
functions  of  the  mind,  and  are  cognitive  activity  of 
our  spirit.  They  are  called  categories,  and  are  not  born 

lCf.  §98  ante. 


230  ANALYSIS  OF  DEFINITIONS 

from  experience  because  they  are  the  strongholds  in 
which  phenomena  are  collected;  that  is,  things  as  they 
appear  to  us.  They  are  the  functions  not  of  concrete 
and  empirical  knowledge,  which  continually  changes, 
but  of  always  identical  transcendental  knowledge ;  that 
is,  of  the  "I  think."  Experience,  therefore,  presupposes 
the  categories,  which  render  thought  possible.  If  such 
is  the  nature  of  experience,  the  mind  does  not  know 
things  in  themselves,  as  noumena,  but  as  they  appear; 
that  is,  as  phenomena.  Kant,  in  his  "Kritik  der 
Reinen  Vernunft,"  attacks  the  problem  of  knowledge 
which  is  reducible  to  two  primal  elements,  sensation 
and  a  priori  functions.  In  his  "Kritik  der  Praktischen 
Vernunft"  he  attacks  the  problem  of  morality  which 
lies  in  the  two  termini  of  the  promptings  of  the  senses 
and  in  moral  law.  He,  above  all,  casts  aside  all  the 
practical  principles  which  make  the  motive  of  ethical 
determination  lie  in  matter.  In  conformity  with  these 
practical  principles,  the  value  of  moral  actions  is 
measured  by  their  consequences,  and  by  a  calculation 
of  their  result.  The  only  motive  of  will  is  pleasure, 
and  the  basis  of  ethics  is  purely  empirical.  The 
heteronomic  systems  which  deduce  origins  from  such 
principles  (for  example,  hedonism  and  utilitarianism) 
cannot  explain  moral,  necessary,  and  universal  law  be- 
cause founded  on  empirical  terms  which  of  their  nature 
are  accidental  and  particular.  Thus  a  heteronomic 
system  is  always  constructed  when  a  rational  element  is 
raised  to  a  principle  (for  example,  when  happiness,  in 
its  broad  sense  and  in  harmony  with  the  higher  faculties 
of  man,  is  made  a  principle),  because  an  action  is  ful- 
filled for  an  extrinsic  eudemonistic  reason  or  an  empiri- 
cal motive,  and  virtue  becomes  the  result  of  a  maxim  of 
practical  prudence.  True  morality,  for  Kant,  demands  a 
will  that  is  self-ruling  by  purely  formal  laws.  Will 


KANT'S  DEFINITION  OF  LAW  231 

can  give  laws  to  itself  because  it  is  free  and  independent 
of  the  determining  causes  in  the  world  of  the  senses. 
The  property  which  the  will  has  to  give  itself  laws,  sepa- 
rating itself  from  extrinsic  objects,  is  autonomy.  Auton- 
omous will,  the  indispensable  condition  of  morality, 
is  that  which  is  determined  by  itself  at  every  point, 
which  is  self-sufficient  and  does  not  look  to  foreign 
objects.  Law,  therefore,  is  born  of  the  will  and  at  the 
same  time  it  alone  immediately  determines  the  will, 
because  it  is  pure  form.  Moral  principles,  according 
to  Kant,  notes  Chiappelli,in  "Sul  Carattere  Formale  del 
Principio  Etico,"  should  be  a  common  law  valid  for  all 
rational  natures.  It  should  be  universal  and  necessary 
as  well  and  have  an  imperative  character,  not  hypo- 
thetically  imperative  based  upon  the  convenience  of 
actions  to  their  ends  and  consequences,  but  categorically 
and  absolutely  so.  Law  lies  in  what  will  has  deter- 
mined, not  for  an  external  end  but  with  regard  to  the 
harmony  and  utility  of  which  the  law  consists.  Law  must 
be  unconditionally  obeyed,  but  in  knowledge  categories 
have  no  value  unless  they  are  applied  to  intuition.  The 
ego  would  not  be  blind  without  categories,  not  vain  with- 
out intuitions.  Kant  unifies  these  two  terms,  and  places 
the  possibility  of  cognition  regarded  as  a  whole  in  the  prin- 
ciple of  the  original  synthetic  unity  of  the  intuitions  and 
categories,  of  sense  and  intellect.  In  the  moral  field, 
the  two  terms  are  absolutely  contrary.  They  do  not 
agree,  and  form  has  value  without  being  applied  to 
empirical  data.  Hence  the  lack  of  harmony  between 
practical  and  theoretical  reason.  Cognition  is  essen- 
tially phenomenal  and  relative.  It  does  not  touch 
things  in  themselves.  Free  will  alone  urges  us  towards 
the  noumenon,  the  supra-sensible  reality  which  is  not 
known  as  an  object  and  cannot  be  brought  into  existence 
in  the  practical  order.  By  such  a  method  there  arise,  as 


232  ANALYSIS  OF  DEFINITIONS 

postulates  of  practical  reason,  that  is,  as  the  demands 
of  moral  consciousness  but  not  as  knowledge,  the  three 
concepts  of  freedom,  the  immortality  of  the  soul,  and 
of  God.  Pure  reason  contains  some  antinomies  which 
destroy  their  theoretical  value.  Having  premised  these 
considerations,  we  can  say  that  Kant  deserves  great 
credit  for  having  determined  the  ethical  principle  in  its 
greatest  purity,  and  for  having  given  duty  an  uncondi- 
tional and  absolute  value.  Kant's  ethics  are  constructive 
and  imperative,  differing  from  the  ethics  of  the  ancients, 
which  were  realistic  and  descriptive,  founded  on  external 
elements  of  nature  and  custom. 

§  112.  Kantian  Ethics.  The  ethics  of  Kant  are 
abstract  and  formal  because  moral  law,  duty,  and 
the  autonomy  of  will  lack  concrete  content.  Man 
is  not  only  reason  but  sense  and  appetite  as  well,  yet  in 
the  doctrines  of  Kant  he  is  looked  upon  entirely  as 
reason  which  proudly  throws  off  all  allegiance  to  every 
inclination  of  sense.  In  fact,  will  is  autonomous  when 
it  does  not  remain  indeterminate  but  enters  the  lists 
against  desire,  passion,  and  interests  to  conquer  and 
transform  them  to  reason.  True  autonomy  is  the  re- 
sult of  the  active  energy  of  the  will  and  does  not  con- 
sist in  simple  abstraction.  Aristotelean  eudemonism 
and  Kantian  formalism  are  logically  connected  in  the  idea 
of  the  perfection  of  human  nature.  Eudemonism  gives 
us  the  content,  and  the  imperative  category,  the  form. 
Happiness  in  such  a  conciliation  is  not  the  empirical 
principle  of  ethics  argued  against  by  Kant  but  the  conse- 
quence of  the  necessity  of  subjecting  instinct  and  inter- 
est to  reason.  It  is  not  true  that  all  systems  which  give 
a  content  to  moral  principles  are  founded  on  pleasure 
and  are  reducible  to  egoism.  Human  nature  tends 
towards  its  end.  The  end  is  the  good,  the  perfection 
of  man.  The  end  of  man  is  his  perfection  or  good, 


KANT'S  MORALS  ARE  ABSTRACT         233 

and  therefore  law  consists  in  his  subordination  of  the 
elements  of  sense  to  reason.  This  subordination  once 
realized,  we  have  eudemon,  happiness.  Pleasure  is  the 
necessary  complement  of  perfect  human  activity  and  not 
the  motive  of  will.  The  idea  of  the  end  is  derived  from 
the  essential  character  of  human  nature,  and  therefore 
is  obligatory  and  constitutes  the  imperative  category, 
whose  concreteness  is  shown  by  Kant  when  he  says  that 
rational  nature  must  be  considered  as  ultimate  and  not 
medial.  The  categorical  imperative  of  Kant,  contain- 
ing the  formal  ethical  principle,  is  of  no  avail.  It  decrees 
that  a  right  of  action  is  convertible  with  law  and  can  serve 
as  a  rule  of  conduct  in  all  times  and  places,  but  it  does 
not  indicate  what  should  be  done.  Every  right  of  action 
gives  rise  to  a  universal  maxim,  but  from  this  it  does  not 
follow  that  the  action  is  moral.  And  if  the  maxim  was 
made  universal,  the  action  would  not  longer  be  possible, 
and  it  is  evident  that  a  recourse  would  have  to  be  had 
to  a  calculation  of  the  consequences,  which  is  impractical. 
Law,  for  example,  prohibits  a  breach  of  promise;  but 
no  promise  would  be  possible  if  this  law  became  a  uni- 
versal maxim.  Kant  himself  argues  in  this  manner 
without  reflecting  that  he  looks  to  the  consequence 
of  the  act,  which  he  should  not  do  according  to 
his  premise.  Certainly  universality  is  an  essential  mark 
of  the  ethical  principle,  but  does  it  constitute  all  its 
origin  or  substance? 

§  113.  Kant's  Morals  are  Abstract.  The  abstraction 
of  the  theory  is  seen  as  well  under  another  aspect 
studied  by  Chiappelli  in  the  book  cited.1  Kant 
bases  all  morality  upon  pure  will  understood  in 
itself  and  does  not  emphasize  in  the  slightest  its 
concrete  derivation.  Aristotle,  on  the  other  hand, 
understood  that  the  end,  the  good  and  happiness,  pre- 

1Cf.  "Sul  Carattere  Formale  del  Principio  Etico,"  cit.  §  111. 


234  ANALYSIS  OF  DEFINITIONS 

supposes  autarchy  which  is  obtained  only  in  the  common 
life  and  he,  therefore,  together  with  the  other  Greek 
philosophers,  concluded  that  ethics  were  part  of  politics. 
According  to  him,  morality  is  not  possible  without  the 
interpenetration  of  individual  consciousness  with  society. 
Kant,  however,  departs  from  this  condition  and  stays 
within  the  confines  of  the  subject  itself,  without  regard 
to  its  concrete  position.  Aristotelean  thought  is  to-day 
revived  by  the  doctrine  of  evolution,  based  on  the 
conception  of  ethics  as  part  of  politics,  and  tries  to 
explain  morality  as  a  natural  formation  due  to  a  coming 
together  of  natural,  spiritual,  hereditary,  historical, 
and  social  causes.  Evolutionary  ethics  gets  its  data 
from  moral  consciousness,  explains  the  concrete  genesis 
of  moral  facts,  but  cannot  solve  the  problem  of  morality. 
The  apriority  of  moral  laws  is  very  different  from  apri- 
ority in  biology,  history,  or  heredity.  Moral  law  is 
necessary  and  universal,  and  as  such  cannot  be  the  result 
of  experience.  But  as  the  apriority  of  the  forms  of 
intuitions  and  categories  of  the  mind  do  not  exclude 
the  formation  of  empirical  knowledge,  so  the  evolution- 
ary and  ethical  explanation  of  the  concrete  and 
historical  genesis  of  morality  reduced  to  the  proportions 
of  a  doctrine,  or  their  data  about  moral  consciousness, 
can  be  accepted  as  the  complement  of  the  theory  of  the 
possibility  of  the  ethical  act  and  of  the  nature  of  the 
moral  principle  lying  in  the  purpose  of  man. 

§  114.  Kant's  Idea  of  Law  is  Abstract.  The  idea 
of  law  is  formal  in  the  theory  of  Kant.  Law,  for 
him,  is  the  sum  of  the  conditions  of  coexistence 
—  of  the  will  of  everyone  with  the  will  of  all 
through  a  universal  law  of  freedom.  But  of  what  this 
sum  and  this  universal  law  consist  in  their  concreteness 
is  not  told  by  Kant.  Law  becomes  thus  a  purely 
abstract  principle,  that  takes  no  account  of  the  real 


KANT'S  IDEA  OF  LAW  IS  ABSTRACT      235 

historical  relations  of  the  order  of  things.  Rosmini 
makes  four  observations  about  the  Kantian  theory  of 
law.  The  first  is:  Whoever  wishes  law  to  consist  in  the 
possibility  of  the  coexistence  of  persons  does  not  make 
enough  of  the  element  of  the  rectitude  of  action.  There 
could  be  an  action  wrong  under  the  laws  of  nature  pro- 
motive  of  coexistence,  to  which  no  one  would  have  a 
right  since  there  is  no  faculty  for  doing  evil.  The  second 
can  be  formulated  as  follows :  Even  when  all  the  sum 
of  the  illicit  actions  would  effectively  destroy  coexist- 
ence they  would  not  be  illicit  only  on  that  account. 
The  failure  to  detract  from  coexistence  is  not  the  con- 
stitutive part  of  the  rectitude  of  actions  and  law  but  is 
the  sign  of  it,  the  very  mark  of  universality.  It  is  the 
"principium  cognoscendi,"  not  the  "principium  essendi." 
The  third  is:  Universality  is  equivocal  and  needs  interpre- 
tation, because  it  is  either  absolute  universality,  in  which 
case,  however  licit  the  act,  if  done  by  all  men,  it 
would  destroy  coexistence;  for  example,  if  every- 
body undertook  to  make  shoes,  who  would  remain  to 
cultivate  the  earth?  —  or  it  is  relative  to  the  circum- 
stances of  the  man  in  question,  and  no  iniquitous  action 
would  destroy  coexistence  although  it  were  permitted 
to  all  men  in  the  same  circumstances,  because  the 
condition  would  never  be  renewed.  Finally,  and  this  is 
the  fourth  observation:  It  cannot  be  said  that  if  any 
action  is  clearly  licit  and  not  harmful  to  coexistence 
that  it  should,  therefore,  be  left  free  to  all  men ;  a  requisite 
condition  for  it  to  constitute  a  right.  A  father  can 
hinder  the  most  licit  actions  of  a  son  through  his  paternal 
rights,  though  those  actions,  become  universal,  would  not 
destroy  existence.  These  actions  of  the  son  cannot,  how- 
ever, be  called,  in  relation  to  the  father,  true  rights. 
Logically,  coexistence  and  limitation  of  freedom  are  the 
results  of  the  realization  of  the  rational  measure  or 


236  ANALYSIS  OF  DEFINITIONS 

proportion  of  advantages,  but  do  not  form  its  essence. 
For  Kant,  the  State  has  no  other  mission  than  to  regulate 
the  coexistence  of  freedom,  and  looks  only  to  acts  of  pro- 
tection ;  that  is,  to  law  and  police.  It  nevertheless  repre- 
sents, for  the  German  philosopher,  a  necessity  of  reason 
because  though  born,  it  is  true,  of  contract,  it  is  not 
arbitrary,  since  man  acquires  true  liberty,  equality,  and 
independence  in  the  State,  as  he  says.  This  conception 
contains  in  itself  the  germ  of  the  correction  of  the  theory 
and  assigns  to  the  State  the  restricted  finality  of  mere  pro- 
tection of  persons  and  goods.  Likewise,  looking  deeply 
into  the  formal  categorical  imperative  itself,  we  find 
traces  of  something  positive,  or  the  principle  of  the  will 
as  the  supreme  and  absolute  purpose  which  demands 
respect  for  the  person  and  liberty  for  all. 

§  115.  Fichte  s  Definition  of  Law.  The  idea  of  law 
under  the  aspect  of  conditionality  is  developed  still 
more  in  the  school  of  Kant  by  the  work  of  Fichte 
in  "Grundlage  des  Naturrechts."  He  states  that  the 
ego  should  recognize  itself  as  free  essence;  that  is, 
should  limit  its  liberty  by  the  conception  of  another's 
liberty.  The  juridical  relation  is  that  which  extends 
between  two  rational  beings  by  which  each  limits 
his  freedom  through  the  notion  of  the  freedom  of 
the  other  on  condition  that  the  other  limits  his.  For- 
malism is  here  manifest  because  it  always  remains  to 
be  determined  of  what  the  positive  and  supreme  prin- 
ciple consists  from  which  the  law  as  a  possibility  of  the 
limitation  of  free  essence  is  derived.  The  very  impera- 
tive of  Fichte's  "Be  Free"  is  formal,  since  freedom  is 
formal.  Moral  action,  which  for  Kant  is  based  on  con- 
formity to  necessary  and  universal  law,  is  derived  for 
Fichte  by  the  action  of  the  ego  through  conviction,  and 
succeeds  through  a  reciprocal  enthusiasm  and  excite- 
ment in  so  working.  But  Fichte  does  not  say  in  what 


FICHTE'S  DEFINITION  237 

this  conviction  lies,  or  rather  he  does  not  indicate  its 
content,  because  it  becomes  a  condition  of  morality. 
According  to  Kant,  juridical  freedom  is  from  its  birth 
limited  by  universal  freedom;  for  Fichte  it  has  its 
origin  in  the  individual  real  existence  of  the  ego  and  lies 
in  the  right  of  the  rational  being  to  advance  as  the  only 
cause  in  the  world  of  the  senses,  and  is  of  itself  as  un- 
limited as  the  coercive  faculty  which  adheres  to  it. 
If  it  was  not  that  one  ego  must  admit  another,  it  would 
attribute  to  itself  unlimited  power,  and  therefore  would 
spontaneously  moderate  its  own  power  when  it  limited 
the  power  of  others  by  its  own.  In  the  rational  being, 
there  is  love  of  duty  for  duty's  sake,  a  love  of  self  and 
of  one's  co-citizens  per  se.  One  is  called  a  tendency 
and  is  absolutely  obligatory,  and  the  other  is  called  a 
power  and  has  not  the  same  character  because  it  is 
reducible  to  unlimited  freedom,  which  excludes  every 
law.  Such  subjectivism  and  ethical  relativism  is  a 
direct  consequence  of  Fichte's  system. 

§  116.  Herbart's  Definition.  Herbart  states  that 
philosophy  is  nothing  but  an  elaboration  of  the  con- 
cepts. Philosophy  is  divided  into  logic,  metaphysics, 
and  aesthetics.  Logic  works  for  the  formal  clearness  of 
the  concept  and  pays  no  attention  to  their  content. 
Metaphysics,  for  its  part,  is  occupied  with  the  con- 
tent, and  clears  the  concepts  of  the  contradictions  in 
which  they  are  involved,  makes  them  whole,  and 
gives  them  their  justification.  .^Esthetics  include  the 
series  of  concepts  and  judgments  that  are  referable 
to  particular  states  of  mind,  -to  pleasure  and  pain. 
Between  theoretical  and  aesthetic  judgments  there  is 
this  difference:  that  the  first  give  the  cognition  of 
things  and  look  to  their  value,  and  the  second  do  not 
consider  the  value  and  are  limited  to  showing  their 
pleasure  and  pain.  Many  of  the  aesthetic  judgments 


238  ANALYSIS  OF  DEFINITIONS 

are  made  by  ethical  judgments  which  approve  or  dis- 
approve of  actions.  Ethics  entering  into  aesthetics 
cannot  understand  any  imperative  because  an  impera- 
tive always  implies  a  duty  to  do  or  to  abstain  from  doing 
something.  Morality  is  therefore  a  formal  concept  and 
cannot  be  reduced  to  an  imperative,  as  Kant  taught,  but 
is  reducible  to  five  practical  model  ideas;  the  idea  of 
freedom  (the  accord  of  the  will  with  its  own  motives), 
the  idea  of  perfection  (the  harmony  between  the 
extension  and  intension  of  our  volitive  activity),  the 
idea  of  benevolence  (the  agreement  between  one's  own 
will  and  the  wills  of  others),  the  idea  of  law  (the  har- 
mony of  several  wills  in  respect  to  an  object  for  the 
prevention  of  a  contest),  and  the  idea  of  equity  (the 
accord  between  merit  and  recompense).  If  all  these 
forms  of  accord  are  present,  there  will  be  an  ethical  judg- 
ment of  approval,  and  if  not  there  will  be  one  of  dis- 
approval. Such  models  act  also  as  motives.  From 
the  five  practical  ideas  come  five  social  ideas:  from  the 
idea  of  perfection  comes  the  system  of  education,  from 
benevolence  the  administrative  system,  from  law  comes 
the  juristic  system,  from  equity  the  system  of  retribu- 
tion. Now  it  is  evident  that  the  doctrine  of  Herbart, 
shown  in  his  "Allgemeine  Praktische  Philosophic,"  is 
founded  on  the  most  exaggerated  and  absolute  formal- 
ism excluding  every  substantial  content  from  the  ethical 
principle.  Ethics  are  deprived  of  the  duty  of  action. 
They  lack  nomologyand  exist  only  in  the  sphere  of  aesthet- 
ics or  sensibility  and  formal  harmony.  Without  doubt, 
law  with  its  prescriptions  tends  to  prevent  and  eliminate 
disagreements  and  struggles.  But  it  cannot  be  reduced 
to  a  simple  norm  for  their  avoidance,  because  it  is  an 
energy  which  passes  from  one  phase  to  another  and  tends 
to  maintain  a  determinate  figure  and  meet  the  obstacles 
in  its  path.  Law  has  not  a  true  aesthetic  character 


KRAUSE  AND  AHRENS  239 

apart  from  the  struggle  which  is  its  life.  True  beauty 
does  not  arise  from  adherent  elements,  but  from  the 
depth  of  the  soul,  from  effort  and  activity.  Accord 
and  harmony  are  abstract  forms  of  law,  or  rather  the 
consequence  of  its  realization,  like,  in  that,  to  coexist- 
ence, but  they  cannot  possibly  constitute  its  principle. 
Law,  struggling  and  conquering  opposition,  establishes 
peace,  and  the  peace  which  succeeds  the  war  against 
injustice  on  the  one  hand  increases  the  force  of  law 
itself,  which  becomes  a  power  more  to  be  feared,  and  on 
the  other  confers  upon  it  greater  splendor  and  beauty. 

§  117.  The  Definitions  of  Krause  and  Ahrens.  In 
the  definitions  given  by  Krause  in  "Abriss  des  Systems 
der  Philosophie  des  Rechts  oder  des  Naturrechts," 
and  by  Ahrens  in  "Naturrecht  oder  Philosophie  des 
Rechts,"  the  principal  defect  lies  in  including  all  the 
essence  of  law  in  the  single  conception  of  conditionality. 
In  fact,  Krause  and  Ahrens,  defining  law  as  the  organic 
complexity  of  free  conditions  for  the  harmonious  fulfill- 
ment of  the  destiny  of  man,  show  but  one  aspect,  the  con- 
ditional, and  degrade  law  to  the  point  of  representing 
it  as  a  simple  collection  of  means.  Certainly,  law  offers 
man  the  conditions  of  life  and  development,  and  pro- 
tects his  advantages,  but  it  must  also  be  considered  as 
the  realization  of  the  principle  of  good,  and  therefore 
under  the  higher  aspect  as  a  participant  in  uncondi- 
tionally. Geyer  in  "Geschichte  und  der  System  der 
Rechtsphilosophie  in  Grundziigen"  thinks  that  Tren- 
delenburg's  definition  is  like  the  definition  of  Krause 
when  the  former  says  that  law  is  the  complexity  of  the 
universal  determinations  of  action,  which  render  pos- 
sible the  preservation  and  perfection  of  human  society 
in  the  form  of  an  ethical  whole  and  its  particular  parts. 
Geyer  is  right  if  these  universal  determinations  of  action 
are  understood  as  conditions  necessary  for  its  realiza- 


240  ANALYSIS  OF  DEFINITIONS 

tion,  as  Trendelenburg  himself  says,  followed  by  Ulrici 
in  "Das  Naturrecht" ;  that  is,  that  it  is  ethical  in 
dealing  with  national  law,  with  the  power  proper  to  an 
organic  whole.  But,  if  this  interpretation  is  accepted, 
law  would  lose  its  very  substance  and  be  reduced 
to  a  means  for  the  realization  of  ethics,  and  what 
is  purely  ethical  would  be  the  ethical  branch  of 
law.  Thus  its  coercive  power  would  implicitly  be 
denied,  because  force  is  repugnant  in  the  sphere  of 
pure  morals.  If,  therefore,  the  complexity  of  univer- 
sal determinations  of  action  can  be  thought  of  as  the 
system  of  external  freedom,  the  definition  of  Trendelen- 
burg is  the  same  as  the  conception  of  Hegel  that  we 
have  given  before.1  In  truth  the  thought  of  Trendelen- 
burg of  the  specific  essence  of  law  is  not  precise  and  is 
capable  of  a  double  interpretation. 

§  118.  Law  is  an  Ethical  Principle.  All  the  defi- 
nitions examined  contain,  as  shown  by  their  criti- 
cism, part  of  the  truth.  Law  is  an  ethical  principle 
and  has  intrinsic  form  and  material  content.  Reason 
is  the  form  as  shown  by  Plato,  Aristotle,  Stoics, 
Roman  philosophers  and  jurisconsults,  Saint  Thomas, 
Dante,  Grotius,  Vico,  Hegel,  Rosmini,  and  Trendelen- 
burg. The  matter  is  the  need  of  life,  the  demand  of 
species,  utility ;  —  elements  shown  clearly  by  the  modern 
materialists  and  positivists,  by  Epicurus,  Bentham,  and 
Stuart  Mill.  Law  presupposes  common  life  with  lan- 
guage, custom,  and  heredity  as  has  been  especially 
shown  by  Aristotle,  Mill,  the  Darwinists  and  Spencer. 
In  its  realization,  it  gets  its  value  from  force  of  which 
Thrasimachus  speaks  and  from  the  physical  and  psycho- 
logical coercion  of  Hobbes,  and  becomes  the  united 
force  of  all  or  the  power  of  union,  as  Spinoza  teaches. 
Law  is  manifested  concretely  by  the  will  of  the  major- 

1Cf.    Intro,  p.  68,  ante. 


LAW  AN  ETHICAL  PRINCIPLE  241 

ity  according  to  Rousseau.  It  results  in  the  limitation 
of  freedom  upon  which  Kant  and  Fichte  base  their 
definitions  and  the  harmony  of  Herbart,  after  the 
struggles  which  Vico  and  Ihering  describe.  Finally 
law,  since  it  is  a  higher  ethical  principle,  offers  and 
protects  the  conditions  necessary  for  the  life  of  man 
and  his  perfection,  as  Krause  and  Ahrens  thought. 


242    LAW,  MORALS,  AND  SOCIAL  SCIENCE 


CHAPTER  VIII 
LAW,  MORALS,  AND  SOCIAL  SCIENCE 

LAW  AS  AN  ETHICAL  STUDY.  —  THE  RELATION  BETWEEN 
MORALS  AND  LAW  IN  HISTORY.  —  CRITICISM  OF  THE  CON- 
FUSION AND  SEPARATION  OF  THE  TWO  TERMS.  —  THE  COM- 
-  MON  BASES  AND  REAL  DIFFERENCE.  —  ETHICAL  AND  SOCIAL 
LIFE.  —  VICO,  SUESSMILCH,  AND  THE  PHYSIOCRATIC  FORERUN- 
NERS OF  SOCIAL  SCIENCE.  —  COMTE'S  SOCIOLOGY  AND  THE 
VARIOUS  MOVEMENTS. —  SPENCER'S  SOCIOLOGY.  —  SOCIOLOGY 
AS  THE  PHILOSOPHY  OF  THE  SOCIAL  SCIENCES.  —  THE  ANALO- 
GIES BETWEEN  SOCIETY  AND  ORGANISM.  —  THE  RELATIONS 
BETWEEN  LAW  AND  THE  SOCIAL  SCIENCES. 

§  119.  Positive  Law  is  Allied  with  Morals,  the  Social 
Sciences,  Economics,  and  Politics.  After  we  have 
determined  the  idea  of  the  law  in  an  inductive,  deduc- 
tive, and  critical  manner,  we  must  show  the  connection 
of  rational  law  with  morals,  the  social  sciences,  eco- 
nomics, politics,  and  positive  law.  Law  is  above  all  an 
ethical  study  and  therefore  it  is  best  to  begin  with  an 
examination  of  its  relations  with  ethics  in  general  and 
with  morals  in  particular. 

§  120.  Morals  and  Law  Originally  One.  There 
was  necessary  in  primitive  days  an  all-powerful,  ex- 
tended, single,  indivisible  force  which  contained  all  the 
activities  of  man  within  certain  limits  and  established 
customs,  and  enforced  obedience  and  normal  action  or 
the  fibre  of  legality,  as  Bagehot  expressed  it.  These 
were  the  days  of  the  Polyphemi,  of  which  Vico  speaks. 
In  them,  spiritual  and  moral  were  indistinguishable  from 


LAW  DISTINGUISHED  BY  ROMANS      243 

juristic  and  legal  punishments;  the  mind,  still  in  its 
childish  state,  was  confused  and  was  not  in  a  position 
to  analyze  and  abstract.  Centuries  of  unchanging 
uniformity,  monotony,  confusion,  and  slavery  always 
precede  those  of  variety,  analysis,  and  freedom.  It  is 
useless,  therefore,  to  search  in  those  ages  for  the  traces  of 
law  distinct  from  morals.  The  confusion  of  the  two 
terms  lasted  even  into  the  classical  age,  in  which  the 
spirit  was  emancipated  from  the  yoke  of  nature  and  was 
given  new  life  through  art  and  speculative  thought. 
In  fact,  the  laws  of  the  Greek  States  not  only  controlled 
the  external  activity  of  the  citizens,  but  tended  to  inter- 
penetrate with  their  intimate  will,  not  separating  motive 
from  action.  For  example,  justice  according  to  Plato 
consists  principally  in  internal  acts;  Aristotle  calls  only 
those  men  just  who  desire  and  realize  what  is  just. 
In  Greece  there  is  no  word  to  signify  law,  because  it  is 
resolved  in  the  universal  concept  of  justice. 

§  121.     Morals  and  Law  Distinguished  by  the  Romans. 
The     Roman    philosophers    and    jurisconsults    distin- 
lished  morals  from  law,  but  the  distinction  was  not 
Iways  precise  and  clear,  neither  had  it  the  force  of  an 
qplicitly    declared    speculative    principle.     It    appears 
from  their  distinction  that  the  "bonum,"  defined  by 
meca  as  "quod  ad  se  impetum  animi  secundum  naturam 
lovet,"  became  external  in  two  forms  in  the  "bonum 
niod  honestum  est"  and  the  "bonum  quod  sequum  est." 
Allowing  the  philosophers  more  particularly  than  the 
jurisconsults  it  can  be  stated  as  Cicero  said,  "honestum 
st  summum  bonum,"  and  that  it  is  per  se  voluntary 
luse  "nihil  honestum  quod  ab  invito  quod  a  coacto 
it,"  as  Seneca  pointed  out;  and  that  it  develops  in  the 
icre  of  intimate  consciousness  as  well  as  in  that  of 
:tion.     The  jurisconsults,   however,   recognized  moral 
and  distinguished  them,  as   Capuano   points  out 


244    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

in  his  "Primi  del  Diritto  Romano."  Moral  facts  are 
those  which  depend  upon  purely  individual  ends,  such 
as  the  good  or  bad  administration  of  one's  affairs  accord- 
ing to  whether  one  acts  moderately  or  without  due 
thought.  They  are  referable  to  acts  of  liberality  incap- 
able of  coercion  and  to  "cognitatio"  for  which  no  one  is 
punished  and  to  acts  upon  which  no  pecuniary  value 
can  be  placed,  such  as  freedom.  The  grounds  of  dis- 
tinction according  to  the  jurisconsults  is  the  spontaneity 
of  the  moral  act  and  the  necessity  of  the  juristic  act. 
It  is  written  in  the  sources  of  law:  "Sicuti  voluntatis  et 
officii  magis  quam  necessitatis  est  commodare,  ita  modum 
comodati  finemque  praescribere  eius  est  qui  beneficium 
tribuit.  Cum  autem  id  fecit  (id  est  postquam  com- 
modavit)  tune  finem  praescribere  et  retro  agere  atque 
intempestive  usum  commodatae  rei  auferri  non  officium 
tantum  impedit  sed  et  suscepta  obligatio  inter  dandum 
accipiendumque :  geritur  enim  negotium:  et  ideo  in- 
vicem  propositse  sunt  actiones  ut  apparent  quod  prin- 
cipio  beneficii  ac  nudae  voluntatis  fuerat  converti  in 
mutuas  praestationes  actionesque  civiles."  The  "bonum 
asquum"  is  founded  on  the  "naturalis  ratio"  and  is 
derived  from  the  "bonum"  and  "honestum"  because, 
as  Papianus  says,  "facta  quae  laedunt  pietatem  existi- 
mationem  verecundiam  nostram  et  ut  generaliter  dixeram 
contra  bonas  mores  fiunt  nee  facere  nos  posse  creden- 
dum  est."  This  derivation  is  taken  from  Cicero's  and 
Ulpian's  definition  and  from  the  three  "praecepta  juris." 
Cicero  wrote  that  "justitia  est  habitus  animi  communi 
utilitate  confirmata  suam  quique  tribuens  dignitatem," 
and  Ulpian  stated  that  justice  is  the  habit  of  the  mind 
"constans  ac  perpetua  voluntas  jus  suum  quique  tribu- 
ens." Of  the  three  general  principles  of  law  or  "prsecepta 
juris,"  the  first  or  the  "honeste  vivere"  represents  the 
moral  basis  of  law;  the  second,  that  is,  "neminem 


DISTINCTION  IN  THE  MIDDLE  AGES     245 

\azdere,"  is  the  formula  of  the  negative  legal  duties;  while 
the  third  or  "jus  suum  quique  tribuere"  regards  the 
positive  legal  duties,  .as  Morianus  points  out.  Ulpian 
adds  that  the  jurisconsults  are  called  the  priests  of  jus- 
tice because  they  teach  men  to  be  good  and  just.  The 
three  concepts  of  "sapientia,"  "prudentia,"  and  "juris- 
prudentia"  emphasize  the  connection  between  the 
"bonum  aequum,"  the  "bonum"  and  "honestum." 
But  this  does  not  imply  the  identity  of  the  three  terms. 
"Sapientia"  is  the  knowledge  of  all  good,  human  and 
divine.  It  is  the  "scientia  divinarum  atque  humanarum 
rerum"  of  the  Stoics,  philosophers,  and  jurisconsults. 
"Prudentia"  is  the  knowledge  of  the  "bonum  honestum." 
"It  is,"  thought  Cicero,  "rerum  bonarum  et  malarum, 
neutrumque  scientia."  "Jurisprudentia"  is  the  knowledge 
of  the  "bonum  aquum,  est  justi  atque  injusti  scientia," 
founded  on  the  "notitia  divinarum  atque  human- 
arum  rerum."  The  "bonum  sequum"  is  connected  with 
utility.  It  is  "constitutum  hominum  causa."  It  admits 
of  coercion,  for,  as  is  written  in  the  sources,  "Sanctio 
legum  certam  poenam  irrogatiis  qui  praecepto  legis  non 
obtemperaverint."  It  is  developed  in  external  action 
and  not  in  the  intent;  "nee  consilium  habuisse  noceat 
nisi  et  factum  secutum  fuerit."  The  distinction  between 
morals  and  law  is  proved  as  well  by  the  sentence  of 
Paulus:  "Non  omne  quod  licet  honestum  est;"  and  by 
the  Institutes,  "condictio  ob  turpem  vel  injustam 
causam." 

§  122.  Distinction  between  Morals  and  Law  Disap- 
peared in  the  Middle  Ages.  In  the  Middle  Ages 
this  distinction  does  not  appear,  because  the  Church 
subjected  the  most  intimate  part  of  man  and  acted 
as  the  conscience  of  the  State,  which  lost  its  ancient 
and  classical  signification  and  was  forced  to  live  as 
the  body  of  the  Church.  The  latter  pretended  to 


246    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

scrutinize  men's  souls  and  embraced  in  the  Holy 
Inquisition  the  coercive  means  of  civil  authority.  Sin 
was  converted  into  crime ;  —  the  great  sin  of  heresy 
became  the  greatest  crime  to  be  stamped  out  by  the  most 
efficacious  prevention  and  the  most  energetic  and 
exemplary  repression.  Exorbitant  claims,  however,  pro- 
voked a  reaction,  and  the  principle  of  liberty  of  con- 
science appeared  at  first  in  Italy  and  afterwards  in  other 
countries.  Bruno  taught  that  acts  or  deeds  should  not 
be  punished,  which  did  not  affect  the  peace  of  the 
State.  Later,  Grotius  emphasized  a  strict  and  perfect 
right  comprehensive  of  power,  property,  and  the  per- 
missibility of  demanding  what  is  due,  and  an  imperfect 
right  which  connotes  virtue,  liberality,  and  reward. 
He  did  not  distinguish  law  from  morals  in  so  many  words 
since  he  reduced  both  terms  to  a  kind  of  law,  but  it  cannot 
be  denied  that  this  broad  conception  of  the  two  terms 
in  the  qualifications  of  an  imperfect  and  perfect  law  are 
the  germs  of  a  specific  differentiation.  Puffendorf,  the 
author  of  "Elementa  Jurisprudentise  Universalis,"  "De 
Jure  Naturae  et  Gentium,"  and  "De  Officio  Hominis  et 
Civis,"  retarded  the  progress  of  philosophy  in  sub- 
ordinating internal  duties  to  theory  and  external  duties 
to  natural  law.  Leibnitz,  in  his  celebrated  treatise 
"Nova  Methodus  Discendae  Jurisprudentiae,"  corrected 
the  error  and  took  the  internal  duties  away  from  theo- 
logical control  and  replaced  them  in  moral  philos- 
ophy. Thomasius,  in  "Fundamenta  Juris  Naturae  et 
Gentium,"  really  separated  the  imperfect  and  incoercible 
duties  which  are  referable  to  the  internal  peace  of  mind 
from  perfect  and  coercible  duties  which  keep  the 
external  peace.  Kant  conceived  the  unity  of  morals 
and  law  in  his  metaphysics  of  customs,  as  a  science  which 
comprehends  the  principles  of  ethical  and  juristic  notions, 
but  attained  knowledge  of  their  absolute  separation 


CONFUSION  AND  SEPARATION  247 

when  he  wrote  that  morals  have  to  do  with  internal 
acts  and  intentions,  and  can  command  in  their  own  way 
what  law  commands,  while  law  which  has  to  do  with  ex- 
ternal acts  has  nothing  to  do  with  intentions,  and  can- 
not enforce  moral  precepts.  Moral  legislation  has  its 
motive  in  the  absolute  idea  of  duty;  juristic  legislation 
demands  only  the  conformity  of  action  to  an  established 
norm.  Fichte  adds  that  law  would  go  on  existing  if 
nobody  had  a  good  intention ;  that  physical  force  alone 
would  give  law  a  right  to  existence. 

§  123.  The  Confusion  and  Separation  of  Law  and 
Morals  are  Both  Wrong.  Confusion  and  separation  repre- 
sent two  excesses:  confusion  is  the  mark  of  primitive 
times  or  the  epoch  of  immobility ;  separation  is  the  pro- 
duct of  modern  dispersive  analysis.  Intention  cannot  be 
the  same  as  action,  pure  will  as  act.  Internal  freedom 
("bonum  quod  honestum  est")  cannot  be  the  same 
as  external  freedom  ("bonum  quod  sequum  est") 
because  the  interiority  of  a  thing  differs  from  its 
exteriority.  Thus  the  confusion  of  morals  and  law 
renders  all  morality  coercible  and  places  a  value 
upon  the  intent  of  itself  and  not  upon  its  result 
and  action  in  the  field  of  juristic  relations.  On 
the  contrary,  separation  destroys  the  natural  bonds 
between  the  terms  and  removes  them  absolutely  from 
their  original  synthesis.  In  intent  and  act,  in  will  and 
work,  in  internal  and  external  freedom,  there  is  man 
with  his  ethical  action.  Neither  in  the  "bonum  quod 
honestum  est"  nor  in  "bonum  quod  aiquum"  alone  lies 
the  whole  principle  of  the  "bonum."  Separation  cannot 
be  admitted,  because  under  the  negative  and  prohibitive 
precepts  of  law  and  the  statutes,  the  spirit  of  morality 
is  active,  working  for  the  attainment  of  the  high  ends  of 
education,  now  establishing  chastity  and  moderation 
of  custom  and  now  rejuvenating  the  soul  and  spirit,  as 


248    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

Trendelenburg  says.  The  matrimonial  laws  which  pro- 
hibit marriages  under  certain  conditions  and  those  which 
forbid  military  trials,  show  the  two  ends  indicated.  It  is 
not  true  that  law  takes  no  account  of  intent,  because  it 
considers  it  in  contracts,  wills,  constitutions,  and  crimes. 
Law  does  not  consider  the  intent  except  as  it  is  shown  by 
the  act  and  does  not  contemplate  it  of  itself  as  morals 
do.  It  is  not  possible  for  the  State  and  statutes  to 
exist  long  if  they  are  threatened  by  general  hatred. 
The  truth  is  that  morals  and  law  cannot  be  confused  or 
separated  but  only  distinguished  with  due  recognition 
to  their  common  origin,  which  is  found  in  the  universal 
practical  philosophy  of  the  ancients  or  in  ethics  making 
for  the  realization  of  the  ends  of  man,  for  his  well- 
being  in  its  amplest  extent.  The  ethical  act,  the  reality 
of  the  human  end  and  good  result  from  the  process 
which  subordinates  the  inclination  of  the  senses, 
interests,  and  utility  to  the  sovereign  control  of  reason, 
as  we  have  said.1  Such  was  the  universal  justice  of  the 
philosophers,  which  is  not  now  morals  and  now  law  but 
rather  their  primitive  unity.  Platonic  justice  coordi- 
nates the  particular  virtues  and  assigns  its  field  to  each 
faculty.  The  universal  justice  of  Aristotle  is  the  whole 
of  virtue.  Law,  in  the  broad  sense  given  it  by  Grotius, 
embraces  morals  and  law.  And  the  force  of  the  true 
in  human  reason  which  struggles  against  cupidity  and 
weighs  the  different  utilities  is,  for  Vico,  the  principle 
of  the  two  studies.  Hegel  admits  law  in  the  general 
sense  growing  out  of  the  confusion  of  the  subjective  and 
objective  will  and  comprehensive  of  the  two  terms. 
Romagnosi  speaks  of  law  in  the  same  sense;  that  is, 
as  the  norm,  which  moderates  human  acts,  derived 
from  the  real  and  necessary  nature  of  things.  Rosmini 
regards  juristic  justice  as  a  part  of  universal  justice. 

Cf.   §  85  ante. 


SEPARATION  AND  CONTRADICTION     249 

We  have  observed  before1  that  if  the  process  of  sub- 
ordination comes  to  a  preference  in  internal  conscious- 
ness and  is  seen  in  the  sphere  of  intention  per  se,  we  have 
morals;  and  if,  on  the  other  hand,  it  has  to  do  with 
external  relation  between  man  and  man  or  man  and 
things,  we  have  law  properly  so  called.  Morals  and  laws 
are  two  branches  of  ethics,  are  two  methods  of  effecting 
the  human  end,  or  that  of  ethical  reality.  Whence  it 
follows  that  morals  are  not  complete  entirely  in  the  con- 
sciousness but  are  shown  in  action,  because  they  are 
always  an  ethical  reality  and  as  a  reality  cannot  fail  to 
have  an  external  side.  On  the  other  hand,  law  is  not 
reducible  to  a  wholly  external  and  pharisaical  practice 
without  any  basis  or  intention  because  it,  too,  is  ethical 
reality  and  therefore  essentially  implies  a  certain  intent. 
The  ethical  act,  the  conformity  of  the  subjective  and 
objective  will,  and  the  subordination  of  the  elements 
of  sense  to  reason  cannot  be  absolutely  internal  or  abso- 
lutely external  because  they  are  the  effect  of  the  whole  of 
man  and  the  development  of  all  good  in  general.  The 
internity  and  externity  represent  only  the  prevalence 
of  the  intention  or  action  in  the  development  of  this 
principle.  Morals  comprehend  action  but  consist  prin- 
cipally of  intent.  Law  is  extended  over  the  intent  but 
is  particularly  occupied  with  the  act.  Since  they  are 
branches  of  ethics,  they  cannot  be  contradictory  in  their 
origin,  nor  can  either  be  entirely  abstracted  from 
action  or  intention. 

§  124.  Separation  and  Contradiction  of  Morals  and 
Law.  Some  believe  that  there  is  a  separation  and  some- 
times a  contradiction  between  morals  and  law.  A  man, 
for  example,  can  legally  break  a  promise  which  morally 
he  is  bound  to  keep.  The  creditor  can  cruelly  pursue 
his  action  against  the  unfortunate  and  guiltless  debtor 

lCf.  §  122  ante. 


250    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

and  put  his  family  out  into  the  street,  though  that  is 
immoral.  Everyone  can  dissipate  his  own  estate  and 
lead  a  dissolute  life,  but  morals  prohibit  dissipation  and 
dissoluteness.  The  debtor  can  with  bad  grace  pay 
what  he  owes  the  creditor;  the  act  is  legal  but  immoral. 
All  these  examples,  however,  prove  only  one  thing;  that 
morals  and  law  have  two  different  spheres  and  are  sepa- 
rate but  uncontradictory  studies.  It  is  true  that  who- 
ever breaks  his  promise  is  guilty  of  an  offense  against 
morality  and  possibly  none  against  law,  but  on  the  other 
hand  whoever  fulfills  it  observes  morality  and  is  guilty 
of  no  offense  against  law.  If  there  was  a  true  contra- 
diction, as  Cavagnari  showed  in  "Corso  Moderno  di 
Filosofia  del  Diritto,"  respect  paid  to  morality  might 
—  though  it  is  not  certain  —  be  an  offense  against  law. 
In  the  case  of  a  fundamental  right  there  is  no  contra- 
diction, because  the  law  is  essentially  permissive.  There 
would  be  a  real  contradiction  if  the  creditor  was  made 
by  the  law  to  sue  his  unfortunate  debtor.  Man  has  a 
right  to  freedom  in  private  conduct  and  can  dispose  of 
his  goods  as  he  desires,  saving  always  a  respect  for  the 
opinions  of  others  and  the  limitations  of  a  social  and 
political  order.  He  has,  therefore,  no  right  to  dissipa- 
tion and  dissoluteness  but  a  right  not  to  be  interfered 
with  in  the  exercise  of  his  power  of  disposition  and  con- 
duct of  life.  So  in  the  hypothesis  of  the  observance  of  law 
without  a  good  intent  there  is  no  contradiction,  because 
there  is  an  act  ethically  perfect  performed  to  all  appear- 
ances as  if  the  good  intent  accompanied  the  legal  act. 
If  sometimes  the  intent  is  discordant  with  the  act,  that 
depends  upon  the  distinction  between  the  two  realms  and 
sciences,  but  if  there  were  contradictions  the  coincidence 
of  the  two  terms  in  a  single  act  would  not  be  possible. 
Rosmini  taught  that  the  so-called  immoral  rights  are 
relatively  and  not  absolutely  immoral.  In  other  words, 


ROSMINI  NOT  CLEAR  251 

law  is  immoral  whenever  it  does  not  forbid  an  irrational 
or  wrongful  act,  whenever  it  permits  an  act  presuming 
it  to  be  honest  because  of  the  impossibility  of  proof, 
and  whenever  it  does  not  forbid  an  immoral  act  because 
of  underlying  fundamental  right. 

§  125.  Rosmini  Does  Not  Clearly  Understand  the 
Difference  between  Morals  and  Law.  If,  on  one  hand, 
Rosmini  eliminates  the  possibility  of  the  true  con- 
tradiction between  morals  and  law,  on  the  other 
hand  he  is  not  always  exact  in  his  conception  of 
these  two  terms.  He  reduces  the  sphere  of  the  law 
to  that  of  the  licit,  as  we  have  shown  before,1  and 
does  not  give  his  attention  to  the  juristical  duty 
which  is  the  natural  antecedent  of  the  "facultas  agendi." 
In  treating  of  the  essential  ends  of  personality,  law  com- 
mands or  prohibits,  but  primarily  there  is  a  duty  of 
doing  or  not  doing  what  the  law  commands  or  pro- 
hibits, and  this  duty  is  juristic  and  there  is  a  legitimate 
right  not  to  be  hindered  in  the  fulfillment  of  the  duty. 
According  to  Rosmini's  conception,  the  field  of  law  is  not 
as  large  as  it  should  be,  and  consequently  he  is  not  on 
the  road  to  fix  correctly  the  boundaries  of  the  two 
sciences.  Furthermore,  Rosmini  places  the  specific 
difference  between  morals  in  the  eudemonological  con- 
tent of  law,  as  if  the  general  good,  as  an  ethical  object, 
did  not  comprehend  happiness  interpenetrated  with 
reason.  The  good  is  derived  from  the  subordination 
of  the  elements  of  sense  to  reason.  Ethics  contain 
eudemonology  and  are  not  modelled  upon  an  abstract, 
formal,  and  empty  principle  like  that  of  Kant.  In  morals, 
the  eudemonological  content  is  referable  more  to  the 
internal  sentiments  of  the  mind;  in  law  it  has  more 
regard  for  extrinsic  utility;  but  this  does  not  mean 
that  the  useful  is  foreign  to  morals  or  that  pleasure  or 

lCf.  §  124  ante. 


252    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

displeasure  is  foreign  to  law.     It  is  only  a  question  of  the 
prevalence  of  one  or  the  other  elements. 

§  126.  The  Theory  that  the  Useful,  Just,  and  Honest 
are  Three  Aspects  of  the  Good.  Carle  in  his  "Vita 
del  Diritto"  writes  that  the  useful,  just,  and  honest 
are  three  aspects  of  the  good.  The  useful  corres- 
ponds to  the  senses  of  man  by  the  bonds  which 
it  has  with  matter,  from  which  he  gets  his  means 
of  sustinence.  The  just  is  connected  with  the  social 
nature  of  man  and  is  coercive,  thus  rendering  civil 
community  possible.  The  honest  is  that  side  of  the  good 
which  is  most  intimately  connected  with  the  spiritual 
and  moral  part  of  the  human  being,  and  his  growth 
towards  perfection.  The  honest  is  incoercible  and  is 
realized  through  the  development  of  freedom,  becoming 
a  desire  and  aspiration  of  the  finite  towards  the  infinite. 
The  useful  is  the  matter  of  the  just ;  the  honest  consti- 
tutes its  form.  In  this  theory,  morals  have  no  real 
eudemonological  content  because  the  idea  of  the  honest 
does  not  comprehend  the  useful  and  conservative.  The 
honest  is  absolute,  ideal,  a  priori,  an  object  of  deduction. 
The  useful  is  relative,  sensible,  a  posteriori,  an  object  of 
induction.  And  yet  moral  good  should  have  a  mate- 
rial, sensible  basis,  which  is  had  in  pleasure  and  the 
useful  in  the  broad  sense.  The  perfecting  of  man  is  not 
possible  without  conservation  that  has  an  ethical 
meaning,  and  therefore  should  be  regarded  by  morals. 
The  honest,  as  well  as  the  just,  is  a  human  idea  and 
determinable  through  deduction  and  induction.  Morals 
have  their  relative  side  as  has  law,  and  both  are  parts 
of  the  science  which  is,  according  to  Vico,  philosophy 
and  history.  The  difference  between  law  and  morals 
in  this  theory  is  fundamentally  the  same  as  Rosmini 
points  out,  because  law  is  born  of  the  union  of  the  useful 
and  honest,  while  morals  take  nothing  from  the  useful. 


INCREASE  IN  THE  FIELD  253 

§  127.  Increase  in  the  Field  of  Law.  As  time  goes 
on,  the  objects  and  relations  subject  to  law  increase 
in  number  and  grow  more  intricate  and  complicated. 
Law  governs  objects  which  were  first  in  the  juris- 
diction of  morals.  In  our  day,  for  example,  habitual 
drunkenness  and  cruelty  to  animals  are  punished, 
while  such  acts  in  the  past  fell  under  the  control  of 
morals.  This  does  not  show  that  law  is  little  by  little 
absorbing  morals  but  means  that  in  its  self-explication, 
it  subordinates  those  relations  to  itself  which  are  ration- 
ally within  its  sphere.  '  It  is  not  law  which  is  gaining 
ground  to  the  injury  of  morals,  but  it  is  merely  taking 
possession  of  all  its  estate.  On  the  other  hand,  the  more 
the  sphere  of  law  increases  and  extends,  the  greater 
becomes  that  of  morals,  which  is  also  governed  by  the 
laws  of  evolution.  The  internal  freedom  and  autonomy 
of  moral  subjects  are  more  developed  as  the  intimate 
ethical  relations  multiply  and  develop.  Here  it  is  that 
the  character  of  the  person  is  concretely  shown  and,  at 
the  same  time,  the  great  difficulties  of  the  slow  formation 
of  his  nature  and  temperament  appear.  External  and 
internal  liberty  are  developed  as  sentiments  grow  higher, 
and  ideas  come  nearer  the  true,  the  good,  and  the  just. 
Man's  power  is  bounded  only  by  his  will,  and  his  will  by 
his  knowledge.  Buckle  and  Spencer  do  not  agree  in 
this.  Buckle  taught  in  his  "History  of  Civilization  in 
England"  that  ideas  alone  are  obedient  to  the  laws  of 
progress  and  that  moral  sentiments  and  will  are  station- 
ary. Spencer  states  that  knowledge  does  not  determine 
conduct  because  man  himself '  acts  in  contradiction 
to  what  he  has  learnt,  and  that  on  the  contrary 
action  and  habit  depend  on  sentiment.  But  the  theory 
of  Buckle  paralyzes  the  spirit-making  movement  of 
thought,  and  a  subsequent  change  of  will  impossible,  as 
if  the  will  was  not  thought,  mind,  and  practical  reason. 


254    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

Buckle  is  in  the  position  of  him  who  admits  the  entire 
action  of  the  nerves  of  sense  and  yet  denies  the  reflexive 
phenomena  and  the  transformation  of  sensation  into 
movement  or  tendency.  He  has  fallen  into  this  error 
because  he  based  his  argument  too  much  on  the  fact 
that  reflection  remains  identical  or  changes  but  little  in 
the  moral  world,  and  has  not  put  a  true  valuation  on 
what  new  change  there  is.  Without  doubt,  the  most 
important  elements  of  the  cosmos  and  of  human  nature 
change  little  in  relation  to  the  other  elements,  but  there 
change  has  more  value.  The  head  of  the  organism 
changes  little  in  comparison  with  the  arms  and  legs, 
but  when  change  takes  place  it  is  greater  in  importance. 
The  mind  changes  more  than  the  will  which  represents 
the  essence  of  the  person,  but  a  change  of  will  is  more 
important  to  human  life.  And  this  is  what  is  true 
in  Buckle's  often  erroneous  theory,  as  shown  by  the 
continuous  variability  of  customs  and  sentiments. 
Spencer  disagrees  with  Buckle's  chief  idea  with  argu- 
ments that  really  confirm  it.  To  say  that  the  mind  does 
not  determine  conduct,  because  man  often  acts  in  con- 
tradiction to  what  he  has  learned,  is  to  apply  a  wrong 
test,  because  in  such  cases  the  ideas  are  always  the  guides 
of  action.  The  ideas  are  old  (opinions  born  of  senti- 
ments, passions,  and  interests  of  another  historical 
period)  but  in  the  end  they  are  always  ideas  or  guides 
of  conduct.  It  cannot  be  denied  that  ideas  of  themselves 
are  often  weak  and  inefficient,  and  that  strength  and 
vitality  come  from  the  passionate  reason  or  impulse. 
But  the  impulse  would  be  blind  and  casual  if  it  were 
not  directed  to  its  purpose  by  the  mind  which  is  active 
through  sentiment.  Stuart  Mill  writes  that  to  hold  the 
above  thesis  is  equivalent  to  stating  that  a  boat  reaches 
its  destination  by  the  force  of  the  steam  and  not  by 
that  of  the  fire.  The  stimulus  of  sense  or  impulse 


ETHICS  A  SOCIAL  SCIENCE  255 

is  like  the  steam  while  the  intellect  can  be  likened  to 
the  fire. 

§  128.  Ethics  are  a  Social  Science.  It  has  been 
shown  that  ethics  are  active  in  a  social  and  political 
life  understood  in  a  broad  sense.1  This  is  the  thought 
of  the  Greek  philosophers  and  especially  of  Aris- 
totle; among  the  moderns,  Hegel  teaches  that  the 
effective  ethical  spirit  presupposes  not  only  the  bare 
conformity  of  the  act  to  the  law  of  good  but  demands 
conviction  in  the  good  itself,  of  itself,  and  for  itself, 
because  there  can  be  respect  for  law  without  such  a 
conviction  and  there  can  be  such  a  conviction  without 
respect  for  law.  This  conviction,  however,  should  not 
be  shown  in  a  subjective,  accidental,  and  fugitive 
manner  but  substantially,  necessarily,  and  stably;  that 
is,  in  ethical  habit,  custom,  the  common  course  of  events 
and  the  Ethos.  The  Ethos  is  the  community  of  minds; 
it  is  a  conscious  and  free  state  and  should  not,  therefore, 
be  considered  as  a  simple  substance  or  indifferent  unity 
of  individuals,  but  as  a  subject,,  spirit,  or  person.  As 
soon  as  the  community  appears  as  the  result  or  effect  of 
the  aggregation  of  individuals,  it  is  present  immedi- 
ately in  the  form  of  a  cause  by  which  the  individuals 
themselves  adhere  to  the  union,  since  the  community 
cannot  be  regarded  as  a  simple  substance,  but  must 
be  regarded  as  a  subject  or  person;  and  it  follows  that 
the  individuals  are  not  reducible  to  mere  method,  to 
pure  accident.  The  subject  is  at  first  family  (a  union 
based  on  sentiment),  it  becomes  civil  society  (a  unit 
of  relations  and  individual  or  domestic  interests),  and 
finally  it  becomes  the  State,  the  community  in  which 
reason  is  all-supreme. 

§  129.  Vico  Believed  in  a  Social  Science.  Now  com- 
mon life  or  society,  in  which  ethics  are  realized, 

1Cf.  §  123  ante. 


256    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

is  the  object  of  a  particular  science  in  our  day. 
The  conception  of  a  social  science  was  not  foreign 
to  the  mind  of  Vico,  though  he  declared  in  the 
"Scienza  Nuova"  that  he  wished  to  consider  God  as 
provident  in  moral  and  political  affairs;  that  is,  in  civil 
customs;  and  that  he  believed  such  a  theory  possible 
because  this  civil  world  is  made  by  man,  where- 
fore its  principles  can  be  found,  as  they  should  be, 
within  the  modification  of  the  human  mind  itself. 
According  to  the  Neapolitan  philosopher,  knowledge  and 
action  in  God  are  the  same  thing;  and  man  partakes 
of  the  divine  nature.  The  difference  between  man  and 
God  is  that  man  has  made  this  world,  according  to  his 
principles,  without  knowing  it,  and  even  in  the  belief 
of  doing  exactly  the  contrary.  It  is  the  benevolent 
wisdom  of  Providence  who  has  used  man's  natural 
customs  and  from  their  particular  and  restricted  inter- 
est has  brought  forth  such  ample  results  adapted  to  the 
preservation  of  the  human  race.  Men  wished  to  avail 
themselves  of  bestial  lust  and  to  scatter  their  seed,  but 
the  result  of  their  attempt  was  the  chastity  of  marriage, 
whence  came  the  family ;  the  patriarchs  wished  to  exer- 
cise unlimited  paternal  control  over  their  clients,  and 
cities  grew  up ;  the  nobles  wished  to  abuse  their  freedom 
as  lords  over  the  masses  and  fell  into  the  slavery  of  law, 
which  has  resulted  in  popular  liberty.  What  did  all 
this  was  mind,  because  men  accomplished  it  with  intelli- 
gence. It  was  not  Fate,  because  they  did  it  through 
election.  It  was  not  Chance,  because  they  have  pro- 
gressed through  continuous  action.  The  Providence  of 
Vico  is  not  an  arbitrary  and  transcendental  principle 
upon  which  it  is  not  possible  to  found  a  science,  but  is 
present  in  custom.  It  is  eternal  reason  and  does  not 
act  upon  man  in  immediate,  incomprehensible,  and  mir- 
aculous ways.  It  creates  everything  through  natural  cus- 


BEGINNING  OF  SOCIOLOGY  257 

torn  and  works  always  for  the  elevation  of  human  nature, 
and  constantly  increases  the  wealth  of  its  developments. 
Vico,  in  describing  the  action  of  Providence,  lays  empha- 
sis upon  the  intimate  laws  of  man's  nature  and  mind. 
This  description  renders  clearer  still  the  generous  truth 
that  the  civil  world  is  surely  made  by  men,  and  that 
therefore  they  can  understand  the  science  of  it. 

§  130.  The  Beginning  of  Sociology.  Suessmilch  and 
the  physiocrats  recognize  more  or  less  the  possibility 
of  a  social  science.  Suessmilch  was  the  first  to  dis- 
cover a  fixed  order  in  the  quantity  of  social  facts, 
such  as  births,  marriages,  and  deaths.  This  order 
is  intrinsic  in  the  facts  although  it  has  a  provi- 
dential character.  And  here  we  see  a  providence 
that  works  through  man  with  ordinary  means,  one 
that  cannot  be  called  an  entirely  transcendental  prin- 
ciple for  certainly  the  providence  of  Oettingen,  who  is 
of  the  school  of  Suessmilch,  is  not  transcendental. 
Mercier  de  la  Riviere  and  Dupont  de  Nemours 
speak  of  a  natural  order  of  society,  especially 
when  they  show  the  intimate  relation  between 
economic  and  other  social  phenomena.  But  the 
credit  for  having  clearly  and  precisely  distin- 
guished sociology  from  the  other  sciences  and  for  giv- 
ing it  its  right  conception  belongs  to  August  Comte. 
the  head  and  founder  of  the  positivist  school.  Sociology 
is,  in  his  mind,  the  final  science,  which  is  immediately 
founded  on  biology.  It  is  divided  into  social  statics 
and  dynamics.  Statics  is  the  theory  of  relations,  and 
dynamics  of  progress.  Simple  'biology  in  the  concep- 
tion of  the  Comtian  school,  as  developed  by  Littr6  in 
"La  Science  au  Point  de  Vue  Philosophique,"  can  hardly 
explain  the  more  or  less  marvelous  associations  of  cer- 
tain inferior  animals  and  the  phenomena  of  gregarious- 
ness  among  the  higher  animals,  and  cannot  at  all  explain 


258    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

social  and  historical  evolution  depending  upon  the 
faculty  which  the  common  life  has  of  creating  groups 
of  things  which  can  and  must  be  learned.  Such  a 
faculty  is  expressed  in  traditions,  monuments,  and 
writings,  and  can  be  considered  in  four  successive  stages: 
in  that  of  need;  in  that  of  relations  of  man  to  family, 
society,  and  the  natural  forces  by  which  he  is  dominated ; 
in  that  of  poetry  and  art;  and  in  the  last,  of  abstract 
knowledge.  The  creation  of  an  inheritance  of  knowledge 
is  purely  sociological,  Littr£  points  out,  and  there  is 
nothing  in  biology  which  can  take  its  place.  Custom 
and  heredity  can  aid  social  evolution  but  cannot  create 
or  direct  it.  Quetelet  regards  sociology  as  a  social 
physics.  Spencer  in  the  book  we  have  cited,1  Schaffle  in 
"Bau  und  Leben  des  Socialen  Korpers,"  Lazzarus  and 
Steinthal  in  "Zeitschrift  fur  Volkerpsychologie  und 
Sprachwissenschaft,"  look  upon  it  as  a  social  physiology 
and  psychology.  Buckle,  Lubbock,  and  Tyler  in  his 
"Primitive  Culture,"  whom  Bagehot  follows,  see  in 
such  a  science  a  natural  history  of  humanity  from  the 
primitive  savage  state  to  the  later  phases  of  civili- 
zation. Letourneau  in  his  "La  Sociologie  d'apres 
1'Ethnologie"  bases  it  on  ethnography.  De  Roberty  ap- 
proaches Comte  and  Littre  in  his  "Fragments  de  Philo- 
sophic Positive  et  de  Sociologie  Contemporaine."  The 
legitimacy  of  a  psychology  of  peoples  or  society  has  no 
place  in  the  discussion,  because  many  psychological 
phenomena  found  in  life  and  history  are  not  explicable 
by  the  activity  and  attitudes  of  the  individual  psyche 
and  are  illustrated  only  through  the  principle  of  a 
social  or  national  psyche.  Vico  pictures  this  psyche 
as  a  live  and  not  a  blind  form,  since  chance  has  not 
diverted  or  fate  forced  men  from  their  primitive  natural 
course,  in  which  they  availed  themselves  of  the  suitable 

1Cf.  "Justice,"  cit.   §  109  ante. 


SPENCER  THE  GREAT  SOCIOLOGIST     259 

and  ready  material  to  make  their  republics  in  which 
they  were  active  both  in  mind  and  body.  The  ready 
materials  were  suitable  religions,  suitable  languages, 
lands,  names  of  people  and  things,  suitable  arms  and, 
therefore,  suitable  empires,  suitable  masters  and  laws, 
and  with  these  suitable  elements  there  were  real  freemen, 
and  because  of  the  real  freemen  true  republics  or  States 
were  constituted. 

§131.  Spencer  is  the  Great  Sociologist.  Spencer  is  the 
philosopher  who  has  finally  presented  the  largest  and 
fullest  work  on  sociology,  the  study  of  the  reciprocal 
relation  between  the  human  units  and  their  aggregate, 
of  which  he  shows  the  structure,  growth,  development, 
and  functions.  The  common  action  of  men,  which 
is  the  origin  of  society,  depends  upon  the  general 
character  of  human  nature  and  upon  characters  peculiar 
to  the  different  races  and  individuals.  Social  science 
has  obstacles  of  three  kinds,  —  objective,  subjective,  and 
mixed.  The  objective  difficulties  arise  from  the  great 
complexity  of  social  phenomena,  their  indefinite  number, 
and  their  great  diffusion  in  time  and  space.  The  sub- 
jective difficulties  are  derived  either  from  the  intelligence 
of  the  observer,  as  from  his  automorphical  inclinations,  or 
from  a  disposition  to  contribute  facts  conforming  to  his 
ideas  and  feelings  and  from  a  lack  of  large  comprehension, 
or  else  arise  from  sensibilities,  as  hate,  love,  or  impatience. 
Those  of  the  third  class  are  caused  by  the  different 
positions  in  which  the  observer  is  found,  whence  arise 
prejudices  of  patriotism,  class,  party,  or  creed;  partizan- 
ship,  which  Spencer  analyzes  accurately  in  "The  Study  of 
Sociology."  Super-organic  or  social  evolution,  Spencer 
states  in  "The  Principles  of  Sociology,"  is  determined 
partly  by  external  circumstances  and  partly  by  the 
nature  of  the  units  in  the  humane  aggregate.  The  ex- 
trinsic factors  are  climate,  the  conformation  of  the 


260    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

land,  its  composition,  and  the  flora  and  fauna.  The  in- 
trinsic factors  are  referable  to  the  constitution,  senti- 
ments, and  intelligence  of  the  men  composing  the 
society.  In  primitive  times,  the  extrinsic  factors  were 
predominant;  in  civilization  the  contrary  is  true.  Be- 
sides the  original  extrinsic  and  intrinsic  factors  we  must 
recognize  secondary  or  derivative  factors,  the  products  of 
the  social  evolution  itself,  such  as  increase  in  population, 
reciprocal  influences  of  various  social  bodies,  and  philo- 
logical, scientific,  juridical,  and  political  progress.  Sociol- 
ogy is  the  most  complex  of  all  sciences  and  presupposes 
all  of  them,  more  particularly  the  studies  most  closely 
related  to  it,  psychology  and  biology,  because  psycho- 
logical and  physiological  facts  arise  immediately  in 
society.  It  can  be  gathered,  by  analogy  from  the 
individual  organism,  that  society  is  an  organic  being. 
The  social  aggregate  grows  as  all  vital  bodies  grow;  its 
progressive  increase  in  volume  is  accompanied  by  com- 
plications of  structure  and  a  greater  division  of  functions 
together  with  a  more  extensive  and  accurate  coordina- 
tion. Anyone  can  prove  these  statements  by  comparing 
the  structure  and  coordination  of  the  offices  of  primi- 
tive society  with  the  constitution  and  development  of 
functions  in  a  progressive  society.  Society  is  composed 
of  vital  elements;  that  is,  of  human  individuals,  as  the 
living  body  is  the  union  of  other  vital  individualities. 
The  globules  which  move  in  the  blood  and  the  epithelian 
cellules  which  detach  from  the  animal  and  continue  to 
live  in  water  are  proof  of  this.  Society  remains  while 
individuals  appear  and  disappear  and  institutions,  even, 
vanish;  as  the  organism  remains  while  the  blood,  the 
skin,  and  the  cellules  are  continually  renewed.  Society 
has  three  main  attributes,  the  productive,  the  regulative, 
and  the  distributive.  The  productive  or  digestive  is 
essentially  industrial  and  changes  the  raw  material  into 


SOCIOLOGY  THE  SOCIAL  PHILOSOPHY    261 

alimentary  substances.  The  regulative  gives  society 
its  relation  to  the  external  world  and  other  aggregates 
and  serves  for  defense  and  protection.  The  distribu- 
tive is  represented  by  the  means  of  exchange  and  trans- 
portation and  connects  the  first  attribute  with  the  second, 
as  the  animal  has  an  internal  apparatus  for  alimentary 
substances  and  external  apparatus,  which  puts  it  into 
communication  with  what  is  foreign  to  it,  and  a  vascu- 
lar apparatus,  whose  duty  it  is  to  connect  the  two. 
The  productive  and  regulative  apparatus,  and  in  general 
the  internal  and  external  apparatus,  are  closely  connected 
and  reinforce  one  another  but  are  more  distinguished 
as  we  ascend  in  the  animal  and  human  scale.  The 
same  is  true  of  the  distributive  which  develops  only 
when  the  complication  and  distinction  of  the  two 
others  is  full  and  complete.  Society,  as  all  individual 
organisms,  is  subject  to  the  laws  of  the  struggle  for  life 
and  of  competition  in  its  amplest  sense. 

§  132.  Sociology  is  the  Social  Philosophy.  It  has 
been  pointed  out  that  sociology,  understood  as  a  science 
which  studies  the  social  organism  in  all  its  elements 
and  forms,  showing  its  structure,  development,  and 
functions,  is  a  kind  of  encyclopedia  which  absorbs  the 
various  social  studies  and  cannot  be  the  object  of 
research  or  meditation  for  a  single  mind.  Sociology  is 
not  possible,  says  Vanni  in  his  "Prime  Linee  di  un 
Programma  Critico  di  Sociologia,"  unless  it  is  under- 
stood as  the  philosophy  of  the  social  sciences,  a  general 
doctrine  comprehensive  of  the  first  principles  of  the 
social  sciences  systematized  with  respect  to  individual- 
ity and  the  particular  competence  of  each  unit,  and  with 
a  due  recognition  of  the  fruitful  law  of  a  scientific  divi- 
sion of  labor.  The  study  of  the  diverse  forms  of  the 
social  fact  belongs  to  social  studies.  Sociology  is  the 
pursuit  of  fundamental  and  supreme  laws  that  have  to 


262    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

do  with  the  structure,  function,  equilibrium,  move- 
ment, and  development  of  the  social  organism  conceived 
in  its  integrity ;  the  particular  social  sciences  are  limited 
to  the  order  of  phenomena  which  concerns  each,  inves- 
tigating only  the  laws  adherent  thereto,  and  are  not 
obliged  to  elaborate  a  general  theory  of  society,  which 
is  the  exclusive  duty  of  sociology,  as  Stuart  Mill  pointed 
out.  The  social  sciences  have  the  same  relation  to 
sociology  that  all  the  particular  branches  of  knowledge 
have  to  philosophy,  which  is  the  search  for  supreme 
principles  and  the  connecting  point  of  the  mother- 
ideas.  Spencer  and  Schaffle  have  said  nothing  about 
this,  Comte  is  more  preoccupied  with  sociology  than 
with  the  social  studies,  but  Stuart  Mill  and,  among 
the  Italians,  Vanni  have  seen  this  relationship.  Sociology 
as  a  philosophical  theory  is  called  upon  to  apply  cosmic 
laws  to  the  phenomena  of  common  life  by  determining 
their  modality  in  relation  to  proper  forms  and  char- 
acter. Society  is  an  ethical  organism  that  develops  in 
history.  It  is  an  ethical  organism  because  the  whole 
and  its  elements  are  conscious  and  free  persons,  exist- 
ing as  reciprocal  ends  and  means.  It  develops  in  history 
because  its  life  is  the  evolution  of  human  nature.  Society 
is  not  a  mere  biological  and  physiological  product,  and 
its  progress,  therefore,  does  not  consist  simply  in  a  com- 
plexity of  organic  and  psychic  variations.  It  is  an 
ethico-historical  production,  and  an  emergent  and  not 
a  resultant  fact,  and  its  movement  and  progress  are 
synonymous  to  civilization ;  that  is,  to  the  predominance 
of  the  spiritual  over  the  natural  factors  in  human  reality. 
Social  progress  is  more  than  the  super-organic  evolu- 
tion of  Spencer;  it  is  development  in  time;  it  is  his- 
torical dynamism.  From  this  it  can  be  seen  that 
society  cannot  be  explained  by  biology  and  psychology. 
The  proper  quality  of  the  social  being,  as  an  ethico- 


THE  AGGREGATE  AND  THE  UNITS       263 

historical  organism,  is  beyond  the  competence  of  these 
two  sciences.  We  must  remember  that  new  forms  in 
evolution,  on  one  hand,  include  the  precedent  forms, 
but,  on  the  other,  present  a  specifically  higher  character. 
The  abstract  doctrine  of  identity  and  of  a  single  force 
cannot  give  a  satisfactory  explanation,  because  by 
these  only  the  quantitative  and  not  the  true  qualitative 
differences  are  shown.  The  progress  of  their  growth 
and  their  constantly  more  perfect  qualifications  in  more 
complex  forms  still  remain  obscure. 

§  133.  Sociology  Must  Regard  the  Aggregate  and  the 
Units.  If  we  admit  the  analogy,  shown  by  Spencer, 
between  society  and  an  organism,  we  are  forced  to  con- 
clude that  it  is  a  living  entity  in  the  true  sense  of  the  word , 
but  we  must  not  forget  that  society  is  a  whole,  an  ethical 
organism.  Man  in  the  abstract,  to  use  the  Platonic 
phrase,  is  the  result  of  the  intimate  union  of  human 
elements  of  definite  persons  who  are  ultimate  in  them- 
selves. In  the  ethical  community,  the  individuals  are 
collected  and  united  and  reciprocally  strengthened 
(Trendelenburg  says),  while  the  whole  is  organized  in 
its  parts  and  is  divided  in  the  individuals.  The  idea  of 
strengthening  includes  the  increase  of  the  energy  of  the 
individual  through  the  individual  for  his  particular 
ends;  that  of  organization  implies  the  realization  of 
universal  thought  and  purpose  through  the  whole. 
The  strengthening  and  organization  should  proceed 
with  conservation.  A  strengthening  in  contradiction 
to  organization  is  the  predominance  of  selfish  and  des- 
tructive interest ;  an  organization  hostile  to  strengthen- 
ing means  sacrifice  of  the  parts.  If  society  is  an  ethical 
organism,  the  analogy  and  application  of  physical  and 
physiological  laws  should  be  received  within  the  limits 
and  under  the  control  that  we  have  pointed  out  before1 

lCf.  §  61  ante. 


264    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

in  relation  to  the  laws  of  evolution.  We  do  not  deny 
the  existence  of  a  social  physics  or  physiology,  but 
we  mean  that  both  enter  into  ethics  and  cannot 
be  otherwise  considered.  The  same  can  be  said  of  all 
those  chapters  of  sociology  that  are  based  on  biological 
studies,  as  can  be  seen  from  the  work  of  Schaffle  and 
others. 

§  134.  Law  is  a  Part  of  Sociology.  Now  the  rela- 
tion between  the  human  units  and  their  aggregate, 
the  structure,  development,  and  functions  of  the  latter, 
have  a  juristic  aspect  in  that  they  refer  to  the  action 
of  the  individual  and  of  the  aggregate  itself  and 
realize  externally  the  law  of  good.  Law  in  such  a 
case  is,  as  it  is  in  all  cases,  the  proportion  or  norm 
and  protection.  On  one  hand,  it  is  the  principle  through 
which  the  assignment  of  their  due  is  made  to  the  social 
elements  and  the  whole.  On  the  other  hand,  it  pre- 
vents, by  its  guardianship,  the  development  of  life  of  the 
part  and  the  aggregate  from  being  disturbed.  The 
ethical  organism  demands  singular  and  collective  activ- 
ity or  human  action  and  is,  therefore,  subject  to  the  rules 
of  law,  the  right  measure  of  strength  and  organization. 
Philosophy  of  law  is,  therefore,  the  study  of  the  high 
est  principles  of  the  social  organism,  contemplated 
especially  in  respect  to  human  activity.  It  is  not  pos- 
sible to  effect  the  proportion  allowed  by  reason,  which 
is  law,  and  to  apply  it  to  the  phenomena  of  common 
life  without  knowing  the  intimate  structure,  functions, 
and  laws  of  the  development  of  society.  Neither  can 
it  be  denied  that  justice  enters  in  the  composition  of 
the  social  elements  and  forces,  although  it  may  be  a 
secondary  and  derivative  factor.  Justice  is  such  a  fac- 
tor in  the  sense  that  the  ethical  principle  appears  after 
the  elements  of  sense  but,  nevertheless,  has  more  intrinsic 
value. 


SOCIOLOGY  MORE  THAN  PHILOSOPHY    265 

§  135.  Sociology  is  More  than  a  Philosophy  of  Law. 
Ardigo  in  "Morale  dei  Positivisti"  and  "Sociologia" 
considers  the  natural  formation  of  justice  as  the  mark  of 
the  social  organism.  Justice,  for  him,  is  the  specific 
force  of  such  an  organism  and  is  explained  in  conformity 
with  social  ideas,  based  on  the  nature  of  man  who 
wishes  to  act  freely  in  accordance  with  the  dictates  of 
reason.  From  this  point  of  view,  sociology  itself  is 
reduced  to  the  philosophy  of  law.  But  without  wishing 
to  admit  such  an  identification,  it  cannot  be  denied  that 
the  bonds  between  the  two  sciences  are  intimate  and 
substantial,  since  one  presupposes  the  other.  Philos- 
ophy of  law,  conceived  as  a  genetico-evolutionary  doc- 
trine, as  a  theory  based  on  the  human  idea  of  law, 
must  study  all  social  elements  which  enter  into  the  natural 
formation  of  the  juridical  fact  and  its  idea.  The  juridical 
fact  is  essentially  a  social  fact  since  law  is  not  possible 
out  of  society.  It  is  the  chief  social  fact  looked  at  from  a 
particular  point  of  view,  from  that  of  the  external  relation 
between  man  and  man  and  man  and  things,  in  which 
the  human  good  is  realized  in  conformity  with  the  laws 
of  proportion  and  the  principles  of  protection.  If  this 
is  the  nature  of  the  juridical  fact,  it  is  clear  that  the 
philosophy  of  law  as  the  pursuit  of  the  knowledge  of 
such  a  fact  and  as  a  practical  science  tending  towards 
perfection,  cannot  disregard  the  social  elements  and 
ideality  that  the  civil  community  works  for,  of  which 
Ardigo  speaks.  The  profound  belief  of  Vico  about  the 
two  sources  of  natural  law  and  his  analysis  of  the  neces- 
sity and  utility  of  social  life  is  again  in  point.  Law  is 
born  and  developed  in  society.  It  is  transformed  by 
society  and  works  always  for  the  attainment  of  the 
ideal  which  human  knowledge  indicates.  Sociology,  or 
the  science  which  systematizes  the  fundamental  ideas 
of  separate  social  studies,  cannot  for  its  part  contem- 


266    LAW,  MORALS,  AND  SOCIAL  SCIENCE 

plate  the  social  organism  in  its  integrity  without 
storing  away  the  supreme  principles  of  law.  The 
philosophy  of  the  social  sciences  and  the  general 
theory  of  society  presuppose  the  philosophy  of  law, 
because  without  law,  society  is  incomprehensible. 


THE  STUDY  OF  ECONOMICS  267 


CHAPTER  IX 
LAW,  SOCIAL  ECONOMY,  AND  POLITICS 

THE  SOCIAL-ECONOMIC  REGULATIONS  AND  THE  ANCIENT 
AND  MODERN  PHILOSOPHERS  OF  LAW.  —  ETHICS,  SOCIOLOGY 
BASED  ON  BIOLOGY,  POLITICS,  AND  HISTORY  AS  HYPOTHESES 
OF  ECONOMICS. —THE  CHARACTER  OF  THE  ECONOMIC  FACT.— 
THE  RELATIONS  OF  LAW  AND  ECONOMICS.  —  THE  CONCEPT 
OF  POLITICS. —POLITICS,  THE  SOCIAL  SCIENCES.  ETHICS,  AND 
LAW.  — THE  FULL  MEANING  OF  THE  STATE. 

§  136.  The  Beginning  of  the  Study  of  Economics. 
Grotius,  Vico,  and  Kant  did  not  study  the  social-eco- 
nomic order  in  its  relation  to  the  supreme  rationale 
of  law.  It  can  be  said  in  general  that  the  first  writers  on 
natural  law  paid  exclusive  attention  to  the  essential 
rights  of  the  person,  and  did  not  attend  to  the  nature 
of  the  things  over  which  human  activity  extends.  The 
science  of  economics  was  not  born  in  those  days,  but 
was  only  about  to  make  its  appearance.  Wolff  alone, 
in  his  "Jus  Naturae  Methodo  Scientifico  Tractatum," 
speaks  of  business,  immigration,  population,  and  men- 
dicity. After  him,  the  next  philosopher  who  treated 
in  a  masterly  manner  the  relation  between  our  study 
and  social  economy  was  Romagnosi,  who  changed  the 
most  certain  economic  principles  into  arguments  of 
rigorous  and  indispensable  law  and  of  natural  and  neces- 
sary duty.  In  his  mind,  economic  perfection  began  with 
agricultural  life  demanding  individual  and  stable  prop- 
erty, tending  to  procure  through  the  equality  of  law  larger 
and  more  equitable  diffusion  of  pleasure.  Its  base  is 


268       LAW,  SOCIAL  ECONOMY,  POLITICS 

the  conception  of  commercial  liberty,  which  is 
"axiomatic,"  as  he  says,  "in  public  and  private  law,"  the 
equal  distribution  of  taxes  and  class  separation,  its 
result  the  diffusion  of  social  value  over  the  greatest 
number  or  the  acquisition  of  the  capacity  of  produc- 
tion. The  State  has  the  power  of  intervening  in  per- 
sonal affairs  which  lead  to  the  gradual  destruction  of 
the  many  to  the  advantage  of  the  few. 

§  137.  The  Early  German  Economic  Philosophers  are 
Forgotten.  Hegel,  Trendelenburg,  and  Ahrens  considered 
the  economic  order  of  society  in  relation  to  rational  law. 
Hegel  speaks  of  public  wealth,  labor,  social  classes, 
the  price  of  merchandise,  pauperism,  immigration,  and 
the  control  of  corporations.  Trendelenburg  treats  of 
agrarian  and  forestry  laws,  of  the  law  of  the  arts  and 
of  commerce,  of  exchange,  insurance,  wealth,  and  popu- 
lation. Ahrens  studies  the  economic  aspect  of  every 
philosophico-juristical  theory.  The  new  German  econ- 
omists, however,  no  longer  have  recourse  to  Hegel  and 
Trendelenburg.  They  cite  Ahrens  with  great  considera- 
tion to  show  the  connection  between  economics  and  the 
modern  philosophy  of  law.  The  socialists  alone  sometimes 
remember  the  name  of  Hegel.  The  chief  reason  for  this 
is  found  in  the  widely  different  nature  of  their  writings. 
In  the  books  of  Hegel  and  Trendelenburg,  philosophy 
is  the  prevailing  factor;  those  of  Ahrens  abound  in  de- 
tails; and  the  speculative  elements  have  not  a  large 
development.  Hegel  and  Trendelenburg  are  not  jurists 
in  the  true  sense  of  the  word.  Ahrens  is  more  jurist 
than  philosopher.  Yet  there  is  a  second  reason.  The  two 
philosophers  have  been  condemned  as  metaphysicians  by 
the  positivists,  who  have  a  large  following  among  those 
who  like  an  easy  philosophy.  After  the  condemnation, 
no  one  cares  to  see  whether  their  ethical,  juristic,  and 
economic  ideas  conform  to  the  actual  movement  of 


AHRENS'  THEORY  OF  ECONOMICS        269 

the  studies  about  wealth  or  not.  Ahrens,  on  the  con- 
trary, has  been  able  expressly  to  adhere  to  this  move- 
ment, thanks  to  which  whatever  little  metaphysics  is 
attached  to  his  doctrine  is  condoned. 

§138.  Ahrens1  Theory  of  Economics.  The  adherence 
of  Ahrens  to  the  recent  movement  of  economic  science 
is  clear.  Economics,  this  author  writes,  are  an  ethical 
science  that  is  governed  by  the  principle  of  the 
good,  which  man  should  attain  by  his  own  forces 
aided  by  those  of  nature.  Man  is  the  subject  and 
end  of  wealth;  man  is  individual  and  social  and  there- 
fore economics  tend  to  express  the  law  which  guides 
individual  and  collective  action  in  production,  exchange, 
distribution,  and  consumption  of  wealth.  Economic 
laws  are  not  identical  with  physical  laws  because  the 
moral  and  social  laws  of  which  the  first  are  part  refer 
to  man,  the  free  being.  Ahrens  disagrees  with  the 
theories  of  Kant,  Smith,  Bastiat,  and  Buckle  about 
the  office  of  the  State,  because  it  appears  to  him 
abstract  and  negative;  and  he  shows  that  this  great 
personality  is  constructed  not  only  for  the  security  of 
persons,  and  goods  and  chattels,  but  for  culture  and 
civilization.  The  State,  according  to  Ahrens,  should 
remove  the  difficulties  in  the  way  of  the  full  develop- 
ment of  the  actions  of  individuals;  should  even  help 
in  a  direct  positive  way. 

§139.  Hegel's  Economics.  Reading  Hegel's  "Grund- 
linien  der  Philosophic  des  Rechts,"  it  seems  at  first 
that  he  accepts  the  conception  of  the  absolute  and 
fatal  coincidence  of  private  and  general  interests 
and  likens  the  economic  to  simple  natural  laws. 
In  fact,  he  says,  that  except  for  the  family,  the 
moral  world  presents  itself  as  a  complexity  of  atoms 
because  the  common  interest  in  domestic  society  is 
resolved  into  many  particular  interests,  which,  how- 


270       LAW,  SOCIAL  ECONOMY,  POLITICS 

ever,  can  be  reduced  to  unity  in  that  they  aid  and  help 
one  another  spontaneously.  There  is  in  the  antagonism 
of  the  individual  interests  a  complexity  of  universal 
and  necessary  relations.  In  this,  there  appears  some- 
thing similar  to  the  grandeur  of  the  planetary  system 
in  which  the  eye  perceives  only  irregular  movements 
while  scientific  research  determines  them  with  accuracy. 
When  we  consider  the  theory  of  Hegel  concerning 
the  community  and  civil  society,  we  must  change  our 
judgment,  because  economic  laws  are  for  him  social  and 
civil,  and  reducible  to  ethical  laws.  Civil  society  is  the 
form  of  the  ethical  spirit,  according  to  Hegel.  Eco- 
nomic laws  are  moral  laws  but  regard  the  vegetation 
of  political  bodies,  as  they  say  to-day,  or  the  sum  total 
of  things  destined  for  the  satisfaction  of  needs.  This 
is  certainly  ethics,  but  natural  ethics,  which  are  very  close 
to  social  statics  and  not  very  far  from  biology.  This  is 
clear  because  it  is  not  contradictory  to  speak  of  ethical 
laws  and  emphasize  at  the  same  time  their  unknowa- 
bility  and  spontaneity.  The  natural  spirit,  as  such, 
has  the  characteristics  of  a  spirit.  For  Hegel,  the  State 
has  not  only  the  office  of  protecting  persons  and  chattels, 
but  tends  as  well  to  rule  the  moral  world  and  to  realize 
the  ends  of  culture  and  happiness  without  destroying 
the  principle  of  individuality  which  is  shown  in  the  free 
exercise  of  a  business,  profession,  and  of  activities  in 
general.  Trendelenburg  distinguishes  two  kinds  of 
theories,  the  natural,  economic  theory,  and  the  political 
in  the  old  sense  of  the  word.  The  first,  founded  by 
Adam  Smith,  has  its  origin  in  the  energy  which  takes  its 
impulse  from  the  physical  and  moral  needs  of  the  indi- 
vidual. It  recognizes  no  other  value  than  the  price  of 
merchandise,  and  looks  upon  the  State  as  only  a  pro- 
tector. The  second  holds  that  the  value  of  individual 
activity  depends  upon  the  internal  object  of  the  State, 


ECONOMICS  CONSIDERED  271 

which  represents  the  ethical  whole  and  must  preserve 
the  elements  of  culture  and  education  from  the  harms 
of  the  variable  and  illusory  price  of  merchandise.  Both 
theories  are  insufficient,  unilateral,  and  exclusive,  be- 
cause the  first  regards  economic  value  and  the  second 
political  principles  alone.  We  must  have  recourse 
to  a  higher  doctrine  which  will  conciliate  the  extreme 
theories.  Such  a  doctrine  gets  its  name  from  the  ethical 
organism,  in  which  the  part  lives  the  life  of  the  whole, 
but  has  its  own  personality.  The  part  is  the  individual 
and  the  whole  is  man  in  the  abstract,  in  the  form 
of  a  people.  Trendelenburg  refuses  to  accept  the 
idea  of  the  State  formed  under  the  influence  of  indi- 
vidualism, and  considers  it  as  a  high  personality  destined 
to  develop  all  the  human  powers. 

§  140.  Economics  were  Considered  Without  Ethical  Con- 
tent. We  may  note  that  the  great  number  of  writers  until 
a  few  years  ago  thought  economics  a  science  entirely 
separate  from  ethics,  politics,  and  history.  According 
to  these  philosophers,  whose  leader  was  Pellegrino  Rossi, 
one  can  and  should  pay  attention  to  the  principles  of 
this  study  only  in  the  application  of  the  economic  theory 
in  the  empirical  spheres  of  art  and  not  in  the  field  of 
the  pure  science  of  wealth.  To-day  opinions  are  changed ; 
the  politico-social  school  speaks  of  the  ethical  principle 
of  economics;  the  positivists  reduce  it  to  a  chapter  in 
sociology  founded  on  biology  and  theories  of  evolution; 
and  the  historical  school  wishes  to  change  it  into  a 
science  of  facts.  Opposed  to  these  three  innovating 
schools  there  are  a  number  of  economists  who  defend  the 
old  conceptions  with  vigor.  Do  the  three  schools  respect 
the  independence  of  economics  with  their  doctrine 
and  their  method?  Or  is  this  independence  better 
preserved  by  the  followers  of  the  classical  school  ?  Cer- 
tainly, economics  are  the  science  of  wealth  which  de- 


272       LAW,  SOCIAL  ECONOMY,  POLITICS 

pends,  however,  on  the  element  of  human  nature  and 
physical,  biological,  social,  and  political  conditions,  and 
in  general  upon  historical  factors.  Economics  must, 
therefore,  be  based  on  a  complexity  of  agents  and 
show  the  latter's  influence  on  wealth,  but  should  not 
study  them  especially  and  by  themselves  and  draw 
their  nature  from  them,  because  this  would  be  usurp- 
ing the  office  of  the  other  sciences.  To  the  economist, 
such  causes  represent  merely  a  series  of  presuppositions. 
If  ethics,  sociology  founded  on  biology,  politics,  and 
history  are  considered  only  as  presuppositions,  the 
autonomy  of  the  science  of  economics  is  in  no  wise 
injured,  because  autonomy  does  not  mean  isolation. 
But  if  these  studies  are  confused  with  economics  in 
such  a  way  as  to  make  the  latter  a  civil  ethics,  a  true 
sociology  or  political  science,  a  branch  of  natural  his- 
tory or  even  of  technology,  economic  history  or  statis- 
tics, the  independence  of  the  science  of  economics  is 
denied.  This  point  should  be  developed  fully  because, 
although  it  is  not  a  proper  subject  for  the  philosophy 
of  law,  still  it  serves  in  the  formation  of  an  adequate 
conception  of  an  important  science  which  has  multi- 
fold intimate  connections  with  the  law. 

§  141.  Economics  Have  an  Ethical  Content.  Economics 
have  for  their  object  wealth.  Wealth  is  referable  to  the 
activity  of  man,  and  therefore  political  economy  is 
essentially  a  practical  science.  Now  the  most  prac- 
tical science  is  ethics,  which  considers  the  law  of 
work  in  respect  to  its  natural  end,  which  is  the  good 
or  the  perfection  of  the  person.  From  this  it  follows 
that  economics  are  part  of  ethics  understood  in  the 
broadest  and  most  universal  sense.  In  the  conception 
of  wealth  is  included  the  conception  of  human  nature, 
its  ends,  and  perfection.  In  reality,  wealth  is  chattels 
or  things  which  satisfy  our  needs  and  can  be  exchanged 


ECONOMICS  ARE  ETHICAL  273 

or  are  objects  of  work.  It  is  evident  that  wealth  is  not 
conceivable  without  the  act  of  man,  without  his  activity 
creative  or  productive  of  the  means  of  satisfaction, 
and  without  such  means,  consisting  of  objects  capable 
of  exchange.  But  our  needs,  activity,  and  objects 
cannot  be  understood  without  their  relation  to  the  ends 
of  human  nature  and  their  reciprocal  coordination  and 
subordination,  because  the  ends  constitute  a  true  host 
in  which  each  occupies  his  position  that  deserves  the 
exercise  of  the  power  of  man  which  is  applicable  thereto. 
In  the  fulfillment  of  these  ends,  thus  bound  together,  in 
the  satisfaction  of  the  tendencies  of  sense  and  mind 
lies  happiness  which  contains  pleasure  and  duty,  and 
represents  the  state  of  perfection.  Aristotelean  well- 
being,  or  happiness,  is  human  well-being,  the  object 
of  ethics,  and  wealth  or  economic  prosperity  is  part  of 
it.  In  wealth  there  is  human  well-being  in  respect  to 
useful  and  exchangeable  things.  At  this  point,  we  meet 
the  ethical  principle  of  economics,  which  one  cannot 
disregard  and  from  which  one  cannot  escape  without 
denying  the  common  basis  of  all  practical  or  moral 
studies.  Neither  does  this  principle  lead  to  the  con- 
fusion of  such  studies,  because  it  expresses  only  their 
proximate  nature  and  nothing  more.  If  economics 
accomplish  the  human  good  in  wealth,  morals,  properly 
so  called,  contemplate  it  in  the  intimacy  of  con- 
sciousness, and  law  considers  it  as  a  measure  or  pro- 
portion of  advantages,  and  is  a  guaranty  of  the  external 
relations  between  man  and  man.  Now  all  these  sciences 
are  derivatives  of  ethics,  the  true  universal  practical 
philosophy.  Starting  out  with  this  principle,  we  see  how 
far  from  true  is  the  doctrine  of  Rossi,  who  saw  no 
bond  of  causality  between  wealth,  prosperity,  and  moral 
perfection,  and  on  the  other  hand,  how  true  is  that  of 
Minghetti,  who  knows  that  happiness  cannot  be  unac- 


274       LAW,  SOCIAL  ECONOMY,  POLITICS 

companied  by  duty  and  that  economics,  the  eudemono- 
logical  science,  cannot  be  separated  from  ethics,  to  which, 
however,  it  should  be  subordinated.  Sometimes  it 
happens  that  relations  not  ethical  become  economic 
as  in  the  case  of  the  anxious  pursuit  of  immoral  objects, 
but  this  is  the  consequence  of  pathological  conditions 
and  of  perverted  minds  and  customs.  The  objects  of 
nature  are  in  such  cases  inverted,  and  the  economic 
phenomenon  follows  its  own  laws  under  the  impulse 
given  it  by  man.  But  if  this  impulse  were  always  or 
more  generally  opposed  to  ethics,  economics  would  be 
turned  from  their  object  and  would  no  longer  be  a 
truly  human  science.  Economics  cannot  be  indifferent 
to  good  and  evil  because  man  is  the  subject,  to  whose 
nature  good  and  evil  are  certainly  not  indifferent.  All 
facts  which  raise  and  develop  our  powers  cannot  fail 
to  exert  an  influence  over  wealth.  If  wealth  presupposes 
human  nature,  economics  should  not  be  altogether 
founded  upon  the  tendency  to  personal  interest  but 
should  take  account  (although  to  a  subordinate  degree) 
of  other  individual  and  social  tendencies,  which  affect 
wealth.  Among  the  individual  instincts  differing  from 
that  of  interest,  the  sentiments  growing  out  of  a  knowl- 
edge of  dignity  or  decorum,  and  from  the  need  of  freedom 
and  independence,  can  be  distinguished.  Among  the 
social  sentiments  we  should  place  family  affection, 
patriotism,  and  religion. 

§  142.  Politics  are  Ethical.  Ethics  are  completed 
in  politics  according  to  the  Greek  philosophers.  As 
a  matter  of  fact,  the  good  cannot  be  obtained  except 
in  a  community  in  which  man  acquires  knowledge 
of  himself  and  what  surrounds  him  by  instruction 
or  culture,  and  where  he  can  through  education 
direct  his  will  towards  the  ends  of  reason.  The  com- 
mon life  or  civil  society  is  the  conditio  sine  qua  non 


POLITICS  ARE  ETHICAL  275 

of  true  and  'concrete  virtue  (the  object  of  morals) 
and  of  proportion  of  goods  between  men,  and  of  the 
principle  of  protection  in  which  lies  the  law.  It  is, 
furthermore,  the  presupposition  of  economics,  a  part  of 
ethics  in  general.  Economics  have  to  do  with  wealth 
which  demands  exchange  of  goods,  which  in  its  turn 
demands  trade  and  the  common  life.  Production  is 
not  developed  without  cooperation  and  division  of  labor, 
two  facts  essentially  social.  The  circulation  and  dis- 
tribution of  wealth  cannot  be  thought  of  except  in 
society.  On  the  other  hand,  free  economic  activity 
would  be  a  mere  abstraction  without  the  complexity 
of  social  department  of  safety,  health,  and  education. 
Sociability  furnishes  a  constantly  increasing  intel- 
lectual light,  new  combinations  and  powers  to  the  indi- 
vidual, because  it  carries  on  a  victorious  struggle  with 
nature  and  deprives  her  of  the  advantage  of  strength. 
It  completes  the  deficient  action  of  individuals  and  some- 
times through  its  coercive  branches  promotes  agreements 
to  which  the  particular  and  general  interests  would  tend 
too  late.  In  this  last  case,  the  existence  of  society  is  not 
a  presupposition  of  economics,  but  their  principle  and 
properly  the  principle  which  is  applicable  to  state  control 
in  industrial  undertakings.  But  with  this  exception, 
generally  speaking,  there  is  no  doubt  that  the  nature  of 
the  laws  which  govern  the  social  organism  are  not  within 
the  powers  of  the  economist  and  do  not  belong  to  eco- 
nomics. They  are  a  presupposition  for  him  even  if 
economics  are  considered  as  a  branch  of  sociology. 
Economics  are  a  part  of  ethics,  and  should  be  developed 
within  the  confines  of  the  latter  science,  but  that  is  no 
reason  why  all  of  ethics  should  be  confused  with  eco- 
nomics. For  the  sociological  economist,  sociology  is  a 
presupposition,  as  the  mother  science  is  a  presupposi- 
tion for  the  derivative  science. 


276       LAW,  SOCIAL  ECONOMY,  POLITICS 

§  143.  Economics  are  Biological.  Economics  are  the 
branch  of  ethics  which  is  intimately  connected  with 
biology  and  more  distantly  connected  with  the  other 
natural  sciences.  The  first  connection  between  eco- 
nomics and  biology  is  Aristotle's  natural  Kr^ts 
that  is,  the  spontaneous  appropriative  activity,  com- 
mon alike  to  animals  and  men,  which  develops  over 
the  objects  necessary  and  useful  to  the  existence  of 
the  individual  in  the  social  body.  For  Aristotle,  the 
abundance  of  these  things  constitutes  wealth,  whence 
it  is  that  his  "Ctetics"  is  put  in  his  "Economics."  The 
Stoics,  Cicero,  Pliny,  Celsus,  Albertus  Magnus,  Thomas 
Aquinas,  and  Nifo  admit  and  in  places  illustrate  the 
fact  of  the  common  ownership  of  such  activities  by  men 
and  beasts.  Later  the  physiocratic  school  studied  fully 
the  correlation  between  the  physical,  social,  and  eco- 
nomic orders  extending  the  conception  of  the  natural 
laws.  Gioja  showed  in  a  confused  way  the  relations 
of  similarity  between  the  economic  functions  of  beasts 
and  the  economic  facts  of  man,  pointing  out  the  causes 
of  differences.  After  Gioja,  among  the  Italians,  Cog- 
netti  de  Martiis  collected  and  put  in  order  all  the  scat- 
tered studies  on  the  economic  functions  of  animals  and 
wrote  an  essay  about  the  types  of  economic  fact  in  in- 
ferior races  and  primitive  civilizations;  and  by  the  aid 
of  such  research  tried  to  establish  the  initial  data  of 
economic  sociology,  laying  emphasis  upon  the  criteria 
of  Ingram.  He  believed  that  the  office  of  economics 
consists  in  finding  the  forms  and  determining  the  laws 
of  the  appropriative  activity  in  all  its  evolution  from 
zoological  rudiments  to  the  highest  progress  in  the  life 
of  human  species.  He  looks  to  economics  to  show  that 
the  conscious  adaptation  of  utilities  and  needs  is  first 
made  by  the  natural  organs,  then  by  the  aid  of  tools,  and 
finally  by  exchange  capable  of  transforming  goods 


ECONOMICS  ARE  BIOLOGICAL  277 

into  money ;  and  we  know  the  intimate  connection 
between  the  economic  function  of  beasts  and  the  eco- 
nomic fact  of  man  so  thoroughly  illustrated  by  the 
positive  school,  but  we  do  not  admit  that  the  duty  of 
pursuing  all  the  evolution  of  the  appropriative  activity 
from  animals  to  man  is  incumbent  upon  the  economist. 
The  economist  should  occupy  himself  only  with  the 
economic  functions  of  man,  and  presuppose  those  of 
animals,  the  object  of  biology,  only  stating  the  connec- 
tion between  one  and  the  other.  It  is  true  that  a  new 
product  of  evolution  takes  its  origin  from  precedent 
forms,  but  it  is  likewise  true  that  where  there  is  a  specific 
difference  it  cannot  be  the  same.  The  new  product 
in  such  a  case  should  be  studied  by  itself  in  its  own 
particular  elements  and  differentiating  qualities.  In 
economics,  the  appropriative  activity  of  biology  is  trans- 
formed and  acquires  a  new  meaning.  The  needs, 
energy,  and  utility  of  economic  functions  in  the  life  of 
beasts  are  not  the  needs,  activity,  and  advantages  of 
the  economic  function  of  man.  The  needs  of  man  are 
not  exclusively  physical  but  intellectual  and  moral  as 
well,  not  purely  individual  and  collective  but  personal 
and  social.  The  physical  needs  of  man  are  much  modi- 
fied by  the  influence  of  mind,  and  produce  various  and 
progressive  tastes.  Mind  is  touched  with  a  universality 
and  does  not  feel  bound  to  a  single  impression  of  the 
moment  although  it  proceeds  from  knowledge  of  the 
particular.  Morality  is  created  by  the  force  of  will 
capable  of  arresting  the  force  of  impulse  and  determining 
it  according  to  reason.  The  need  of  the  individual, 
as  such,  is  not  the  same  as  the  need  of  the  individ- 
ual person,  neither  are  the  needs  of  coexistence  those 
of  society.  We  know  that  a  person  is  more  than  a 
simple  individual  as  society  is  more  than  coexistence. 
Furthermore,  the  activity  of  man  directed  by  mind 


278       LAW,  SOCIAL  ECONOMY,  POLITICS 

develops  thought  continuously  subject  to  the  forces 
of  nature  and  is  essentially  personal  in  concrete  and 
abstract  man.  The  advantages  are  not  simple  utili- 
ties or  satisfactions  of  blind  and  indistinct  tendencies, 
but  corporeal  and  incorporeal  wealth,  merchandise,  or 
objects  of  exchange,  which  distinguish  the  society  of  man 
from  the  mutuality  of  animals.  The  ethical  end  or  the 
conception  of  the  perfection  of  the  person  of  which  we 
have  spoken  before1  is  apparent  in  all  the  elements  of 
the  economic  fact.  For  the  economists  such  character- 
istics of  the  fact  constitute  merely  presuppositions.  He 
must  recognize  them  but  need  not  develop  them  in  detail. 
Their  development  and  demonstration  belong  to  other 
moral  studies,  as  the  explanation  of  the  appropriative 
function  in  its  first  steps  belongs  to  the  natural  sciences. 
§  144.  Another  Connecting  Link  between  Economics  and 
Biology.  A  second  connection  between  economics  and 
biology  is  found  in  the  theory  of  population,  because  this 
contains  physiological  and  social  elements  and  is  con- 
nected, therefore,  with  two  orders  of  conditions  and 
causes  of  differing  efficiencies.  There  are  statistical  and 
economic  theories  of  population.  The  statistical  theory 
studies  population  by  itself  in  its  intrinsic  elements  and 
explains  the  law  upon  which  its  actual  methods  of 
existence  or  states  of  development  depend.  The  eco- 
nomic theory  regards  population  in  relation  to  the  means 
of  subsistence,  and  was  formulated  by  Malthus.  The 
two  theories  are  connected,  since  one  cannot  fully 
treat  of  the  state  and  movement  of  population 
without  considering  social  and  economic  causes,  or  the 
relation  between  existence  and  subsistence  without  know- 
ing the  reasons  and  manner  of  demographic  movements. 
At  present  there  is  a  tendency  to  assign  a  special  and 
distinct  post  to  the  entire  study  of  population.  This 

1  Cf.  §  84  ante. 


ANOTHER  CONNECTING  LINK  279 

new  study  has  been  variously  treated,  under  many 
names,  from  a  social  or  biological  point  of  view,  but 
the  economic  theory  of  population  is  directly  bound  up 
with  economics.  We  must  not  forget  that  man  is  the 
subject  of  economics,  and  that  his  capacity  for  multipli- 
cation cannot  be  foreign  to  the  social  order  of  wealth. 
No  one  is  ignorant  of  the  fact  that  Darwin  and  Spencer 
have  converted  the  Malthusian  theory  of  population 
into  a  universal  law  of  organic  nature.  Malthus  sees 
a  deep  and  general  cause  of  poverty  in  the  excess  of  pop- 
ulation over  the  disposable  means  of  support,  from  which 
has  sprung  up  a  fierce  struggle.  Before  this  cause 
he  stops,  as  Messedaglia  points  out.  Darwin  and 
Spencer  consider  the  inequality  and  struggle  as  facts, 
in  which  can  be  discovered  the  dawn  of  progress 
and  glimpses  of  nature  itself,  and  reach  a  conclusion 
of  the  perfection  of  the  species,  or  at  least  its  slow 
and  gradual  transformation.  With  this  premise,  it  is 
clear  that  the  economist  should  consider  population 
more  from  the  social  than  the  biological  point  of  view. 
He  is  not  called  upon  to  develop  a  law  of  organic  nature, 
but  to  show  its  applicability  to  man  and  especially  its 
limits  and  control.  The  universal  law  is  for  him  only  a 
presupposition.  The  economist,  for  example,  considers 
as  his  biological  premise  the  doctrine  of  Spencer  on 
population  in  general,  and  turns  to  study  especially 
the  laws  of  human  population,  as  they  influence  wealth. 
Certainly  all  organisms,  vegetable  or  animal,  are  exposed 
to  destructive  and  conservative  forces  which  are  so 
composed  that  the  prevalence  of  one  provokes  the  re- 
action of  the  other.  If  a  species  is  extraordinarily  in- 
creased, it  always  happens  that  a  predominance  of 
destructive  forces  will  follow;  such  as  a  scarcity  of 
food,  a  restriction  of  space,  or  struggles  with  hostile 
species.  On  the  other  hand,  it  cannot  be  denied  that 


280       LAW,  SOCIAL  ECONOMY,  POLITICS 

the  force  of  preservation  develops  in  an  inverse  ratio 
to  the  generative  force,  and  that  where  the  greatest 
fecundity  is  found,  there  is  the  least  force  of  self-preser- 
vation in  the  generant.  The  more  complex  and  dis- 
tinct in  itself  the  organism,  and  the  higher  the  being 
in  the  scale  of  life,  the  less  is  its  coefficient  of  multi- 
plication. Now,  in  economics,  this  biological  doctrine 
is  not  gone  over  again,  but  a  regard  is  had  to  a  specific 
new  limit  and  a  conscious  and  voluntary  adaptation  to 
a  preventative  re-equaliberation,  as  Vanni  calls  it  in 
his  "Saggi  sulla  Teoria  Sociologica  della  Popolazione." 
This  re-equaliberation,  no  longer  organic,  that  Spencer 
makes  the  mistake  of  disregarding,  is  foresight,  the 
moral  restraint  of  Malthus,  the  ethical  principle  of 
population.  This  principle,  understood  in  its  entire 
efficiency,  serves  to  rectify  the  Malthusian  doctrine,  of 
which  it  is  the  base,  showing  the  rationale  of  a  fact  not 
rare  in  times  of  civilization ;  that  is,  an  increase  in  popu- 
lation inferior  to  the  increase  in  the  means  of  subsistence. 
We  know  that  Malthus  states  that  a  corresponding 
increase  of  population  should  follow  of  necessity  every 
increase  of  means.  This  principle  is  not  contrary  to 
the  natural  and  historical  laws  which  deny  the  possibility 
of  progress  that  comes  from  the  predominance  of  those 
better  adapted  for  the  struggle  of  life;  which  struggle 
is  the  result  of  the  multiplication  of  mankind  beyond 
the  means  and  limits  of  subsistence.  Furthermore,  the 
struggle  does  not  cease  in  the  increasing  development  of 
civilization,  neither  does  the  predominance  of  the  more 
fit  decrease.  But  the  struggle  changes  its  aspect;  one 
does  not  fight  any  more  only  for  the  preservation  of  life 
but  for  every  kind  of  human  advantage.  The  struggle 
is  no  longer  the  savage  war  for  existence  of  primitive 
days.  It  is  changed  into  competition  and  the  pursuit 
of  all  the  advantages  of  a  more  progressive  life,  in  which 
forewarned  is  forearmed. 


ECONOMICS  ARE  HISTORICAL  281 

§  145.  Economics  are  Historical.  Economics  pre- 
suppose the  laws  of  human  nature.  Now  human 
nature  is  not  a  quiescence  without  development,  but 
is  urged  on  by  a  constant,  continuous,  and  progressive 
internal  movement,  due  to  which  it  becomes,  step  by 
step,  what  it  should  be,  and  approximates  its  own 
ideal.  This  movement  is  the  very  life  of  the  human 
race  or  history.  Economics  presuppose  also  the  laws 
of  society  which  is  an  organism  which  moves  and  fulfills 
an  evolution  determined  by  extrinsic  circumstances, 
such  as  climate,  topography,  and  by  intrinsic  factors 
of  a  physiological,  intellectual,  and  moral  nature,  and 
by  factors  produced  by  the  same  evolution  called  by 
Spencer  derivative,  such  as  the  increase  in  population, 
juristic  and  political  progress,  and  the  increase  of  cul- 
ture. Since  human  nature  and  society  move  in  history, 
the  economic  activity  of  man  cannot  be  subtracted 
from  the  laws  of  progress  by  which  it  is  divided 
constantly  into  multiple  functions  and  acts  that 
have  an  intimate  correlation  between  themselves.  It 
extends  to  a  great  number  of  things  and  becomes  more 
intelligent,  free,  and  potent,  aided  by  artificial  means 
of  every  kind.  The  science  which  studies  these  activi- 
ties cannot  forget  the  two  golden  "dignities"  of  Vico; 
one,  that  the  nature  of  things  is  nothing  else  than  their 
birth  in  certain  times  and  in  certain  manners,  and  the 
other,  that  the  study  should  begin  when  the  matters  of 
which  it  treats  begin.  The  beginning  to  which  he 
refers  is  the  human  and  not  the  biological.  This  is  the 
object  of  the  Neapolitan  philosopher's  severe  analysis 
of  the  necessity  of  social  life.  Hence,  economics  pre- 
suppose history.  To  state  that  history  is  a  presupposi- 
tion of  economics  does  not  in  the  least  mean  to  reduce 
the  science  of  wealth  to  economic  history  and  statis- 
tics, to  change  it  into  a  mere  description  of  facts,  or 


282       LAW,  SOCIAL  ECONOMY,  POLITICS 

at  most  to  convert  it  into  a  kind  of  philosophical  dis- 
course about  the  phases  of  economic  reality.  Eco- 
nomics, conceived  in  this  way,  would  no  longer  be  a 
science  or  a  research  of  universal  laws  or  typical  forms ; 
they  would  become  only  an  empirical  collection  of  con- 
crete individual  phenomena.  Reduced  to  a  philo- 
sophical discourse  about  the  historical  phases  of  wealth, 
economics  could  no  longer  examine  intrinsic  elements 
and  would  be  confused  with  part  of  the  philosophy 
of  history.  Now  history  is  a  presupposition  of  eco- 
nomics in  the  sense  that  induction,  from  social  or  his- 
torical facts,  is  not  foreign  to  history.  But  it  is  its 
beginning  and  complement,  without  prejudice  to  the 
proper  right  of  deduction,  and  does  not  imply  the 
abandonment  of  universal  laws  and  typical  forms. 
Furthermore,  it  does  not  exclude  the  true  or  the  ideal 
principle  merely  because  it  begins  with  the  certain  or 
the  real,  for  mind  proceeds  from  the  particular  to  the 
universal.  The  ideal  truth  is  immanent  in  fact  although 
it  does  not  appear  in  it  and  is  not  confusable  with  it. 
What  should  be  is  recognized  in  what  has  been  and  is; 
the  type  is  seen  in  the  variety  and  what  is  eternal  is  seen 
in  the  temporal,  to  borrow  a  phrase  from  Vico.  On  one 
hand,  it  is  not  reasonable  to  sacrifice  law  or  duty  to 
phenomena  per  se  contradictory;  on  the  other  hand, 
it  is  absurd  to  wander  in  the  empty  and  transcendental 
ideals  of  abstract  and  formal  thought  which  have  no 
relation  to  life.  In  this  case,  what  has  been  and  is 
does  not  count  in  comparison  with  the  immovable 
universals  and  rigid  types. 

§  146.  Economics  Constitute  the  Condition  not  the  Cause 
of  Society.  The  economic  fact  is  not  original,  but  derived, 
as  we  have  seen,1  from  physio-psychical  and  historical 
elements  and  external  forces.  It  is  not  predominant 

lCf.  §  141  et.  seq.,  ante. 


ECONOMICS  THE  CONDITION  283 

in  the  sense  that  social  life  is  a  function  of  economics. 
It  is  not  true  that  all  social  facts  are  born  of  the  eco- 
nomic facts  and  that  morals,  religion,  law,  politics, 
and  science  are  its  effects.  This  is  the  thesis  of  Marx, 
Gumplowicz,  Loria,  and  others  who  forget  that  the 
simplest  social  fact  has  its  origin  in  many  causes  and 
that  once  produced,  reacts  on  such  causes  and  is  capable 
of  modifying  them.  Heretofore,  we  have  several  times 
laid  emphasis  upon  the  great  complexity  of  social  pheno- 
mena, the  result  of  conditions  of  every  sort;  physical, 
intellectual,  moral,  juridical,  political,  religious,  and 
historical.  In  the  cosmopolitanism  of  interest,  for 
example,  promoted  by  free  trade  or  hindered  by  the  re- 
appearance of  protection,  we  see  the  ethical  conception 
of  the  brotherhood  of  man.  This  shows  that  a  Chris- 
tian or  pagan  economics  is  always  possible  although 
it  is  absurd  to  think  of  a  Buddhist  geometry  or  a  Moham- 
medan algebra.  Where  cosmopolitanism  exists,  it  is  evi- 
dent that  it  must  exert  an  influence  and  modify  the  very 
causes  by  which  it  is  formed,  and  therefore  it  can  be 
stated  that  the  ethical  conception  of  brotherhood  is 
not  the  same  as  it  was  at  first.  After  the  develop- 
ment of  such  a  fact  the  conception  indicated  acquires 
new  elements,  and  assumes  a  more  concrete  and  sensible 
form.  If,  from  one  aspect,  the  economic  fact  presup- 
poses the  totality  of  social  causes  from  which  it  springs; 
from  another  point  of  view,  it  is  the  condition  for  the 
development  of  facts  belonging  to  a  higher  order.  It 
is  true  that  the  energy  of  mind,  will,  and  imagination 
would  not  be  had  if  the  organic  forces,  especially  those 
of  the  stomach,  were  lacking.  If  the  needs  of  life  had 
not  been  more  or  less  satisfied,  scientific  research,  for 
example,  would  never  have  arisen.  A  determinate 
manner  of  distribution  of  wealth  is  the  presupposition 
of  some  juridical  and  political  institutions.  But,  as  the 


284       LAW,  SOCIAL  ECONOMY,  POLITICS 

stomach  is  not  the  cause  of  the  inspirations  of  genius 
or  of  the  strong  resolutions  of  character  or  of  the  more 
spiritual  emotions,  so  the  economic  fact  is  the  mere 
condition  and  not  the  determinating  principle  of  social 
life  and  civilization.  This  principle  is  mind  or  thought. 
If  there  is  a  predominating  social  factor,  it  should  not 
be  sought  in  the  lower  forms  of  evolution,  but  in 
the  higher,  where  there  is  found  a  principle  that 
is  conditioned  on  the  whole  series  of  precedent  forms 
and  nevertheless  exerts  an  influence,  modifies  each  of 
them,  and  gives  them  a  greater  meaning  and  value.  Only 
mind  is  capable  of  doing  this.  It  appeared  last  and 
has  need  of  all  the  other  grades  of  the  series,  though  it 
transforms  and  re-creates  them  upon  its  appearance. 
The  criterion  for  the  consideration  of  the  social  fact  is 
always  restricted  to  a  unilateral  method;  the  entire 
social  fact  cannot  be  considered  except  with  economic 
elements.  Human  life  and  history  are  not  understood 
in  this  narrow  theory. 

§  147.  Law  is  Economic.  A  great  part  of  the  con- 
tent of  law  is  economic  matter,  because  law  is  the 
measure,  the  proportion  of  advantages,  utilities,  and 
wealth.  It  cannot  fail  to  refer  to  advantages,  but 
it  does  not  necessarily  refer  to  wealth  and  utilities  in 
the  strict  sense.  There  are  ethico- juridical  relations 
which  have  nothing  to  do  with  wealth,  interest,  and 
utility  as  objects  and  which  cannot  be  given  a  mate- 
rial valuation.  Here  lies  the  error  of  the  German  writers 
(for  example  Dankwardt,  and  Bohm  Bawerk1)  who  wish 
to  reconstruct  the  science  of  law  on  the  exclusive  basis 
of  economic  life.  Minghetti,  in  his  work  "Dell"  Economia 
Pubblica  e  delle  sue  Attinenze  colla  Morale  e  con  il 
Diritto,"  points  out  that  the  ancient  philosophers  had 

1  "Recht  und  Verhaltnisse  von  Standpunkte  in  Volkwartshaftlich 
Giitenlehre." 


LAW  IS  ECONOMIC  285 

an  idea  of  a  cosmic  order  founded  on  proportion  and 
wished  to  make  it  the  type  for  the  moral  and  civil 
order.  The  "ne  quid  nimis"  of  the  Delphic  oracle,  the 
doctrine  of  numbers  of  Pythagoras,  the  dialectics  of  Plato, 
the  Aristotelean  mediety,  the  "servare  proportionem"  of 
Cicero  all  denote  how  these  philosophers  placed  this  con- 
ception at  the  base  of  science  and  art,  which,  raised  to 
the  dignity  of  a  dogma  and  connected  with  the  idea  of 
Providence,  holds  its  own  in  the  doctrine  of  the  Fathers 
of  the  Church  and  the  great  writers  of  the  Middle 
Ages,  among  whom  Dante  made  law  consist  in  propor- 
tion. Modern  experimental  science  finds  the  law  of 
proportion  in  the  great  movements  of  celestial  bodies 
or  in  the  most  minute  combinations  of  chemical  attrac- 
tion. This  law,  too,  should  be  considered  in  a  general 
study  of  history  and  in  the  various  parts  of  all  civil 
sciences.  The  greatest  production,  the  best  distribution, 
the  best  trade,  the  most  commodious  consumption, 
and  the  best  coordination  of  all  these  factors  are  ob- 
tained through  the  laws  of  proportion.  To  maintain 
the  proportion  between  land,  capital,  and  labor,  we  need 
science,  diligence,  and  the  habit  of  sober,  hard  work. 
To  maintain  the  proportion  between  population  and 
the  means  of  existence,  we  need  forethought  and  wealth. 
To  maintain  it  between  production  and  the  division  of 
wealth,  domestic  and  foreign  commerce,  cash  and  credit, 
we  need  accurate  judgment  of  offer  and  demand, 
truth,  and  faith;  and  to  maintain  it  between  supply 
and  demand  we  need  the  true  valuation  of  goods, 
temperance,  and  abstinence.  In  all  these  things  jus- 
tice and  the  respect  of  another's  rights  are  presup- 
posed in  a  well-ordered  and  honest  civil  community. 
Starting  out  with  Minghetti's  conception,  it  is  evident 
that  law  is  a  proportion  which  contains  another  pro- 
portion in  itself.  There  is  no  doubt  that  law  is  in 


286       LAW,  SOCIAL  ECONOMY,  POLITICS 

Minghetti's  mind  a  proportion  of  goods,  because  he 
thinks  the  idea  of  proportion  dominates  the  cosmos, 
in  that  it  is  the  object  of  the  physical  and  moral  sciences. 
Economic  proportion  cannot  be  realized  without  justice; 
that  is,  on  one  hand  the  measure  of  mine  and  thine  and 
on  the  other  a  principle  of  protection.  Law  is  the 
norm  and  guaranty  of  the  reciprocal  enforcement  of 
individual  activities  and  of  the  organization  of  the 
ethical  whole  in  respect  to  every  external  advantage, 
social  utility,  and  perfection,  and  therefore  in  regard 
to  the  production,  movement,  division,  and  consump- 
tion of  wealth.  But  wealth  is  not  the  only  matter  of  law, 
but  every  form  of  human  well-being  realized  or  realizable 
in  external  relations  between  man  and  man  and  man  and 
things.  The  economic  content  of  law  is  revealed  in 
its  three  divisions.  In  private  law  it  is  shown  in 
property,  and  its  methods  of  acquisition,  in  con- 
tract, the  family  relations,  and  inheritance;  in  public 
law,  in  the  relations  between  prosperity  and  wealth  of 
citizens,  and  in  political  and  administrative  govern- 
ment. And  in  international  law,  the  humanity  of  nations 
and  justice  between  peoples,  is  capable  of  a  future  devel- 
opment and  consideration  as  a  consequence  of  a  strict 
economical  calculation,  as  Antonio  Scialoia  said.  No 
jurist  of  these  latter  days  can  be  ignorant  of  or  fail  to 
take  into  consideration  the  laws  of  economics,  because 
they  control  a  large  part  of  the  objects  of  law  and  of 
legislation. 

§  148.  Definition  of  Politics.  Politics,  according  to 
the  ancients,  contain  all  the  science  of  the  State. 
Plato  considers  philosophy  the  royal  art  and  says  that 
politics  lies  midway  between  the  theoretical  and  prac- 
tical studies;  and  that  the  politician  is  a  man  of 
science.  Aristotle  includes  in  politics  all  the  teachings 
which  have  to  do  with  the  State.  In  our  own  day 


POLITICS  A  SOCIAL  SCIENCE  287 

Mohl  in  "Encyclopadie  der  Staatswissenschaften," 
Bluntschli  in  "Die  Lehre  vom  Unternem  Staats," 
and  Holtzendorff  in.  "Die  Principien  der  Politik," 
restrict  its  conception  and  agree  in  considering  it  the 
science  of  the  ends  of  the  State  and  of  the  proper  means 
to  attain  them.  Holtzendorff  determines  his  thought 
with  marked  precision,  stating  that  politics  are  not 
occupied  with  the  administration  of  justice,  which  is 
the  object  of  the  juristic  sciences.  Among  the  Italians, 
Rosmini  defines  politics  in  the  same  way;  that  such  a 
study  should  advance  social  ends  and  explain  the  means 
which  the  government  has  in  its  power  in  relation  to 
these  ends,  and  the  most  convenient  method  of  using 
them. 

§  149.  Politics  are  a  Practical  Social  Science.  The 
subject-matter  of  politics  refers  to  a  single  aspect  of 
the  social  fact,  the  one  that  regards  the  finality  of 
civil  life  ordered  by  the  State  and  the  more  convenient 
means  to  obtain  it.  Politics  are  a  special  science  dis- 
tinct from  sociology  which,  as  a  philosophical  study, 
considers  fundamental  laws  and  includes  them  in  the 
more  general  laws  of  social  organization.  From  these 
laws  it  takes  the  directive  principle  of  the  action  of  the 
State,  that  assumes  imperative  forms  which  become 
practical  norms.  It  can  be  accurately  stated,  therefore, 
that  politics  are  not  part  of  sociology,  but  a  practical 
social  science  based  on  the  results  of  the  general  theory 
of  society.  It  can  be  shown  by  the  important  con- 
clusions of  Rosmini,  which  cannot  be  overlooked,  that 
politics  are  not  part  of  sociology.  Rosmini  believes  that 
civil  society  is  a  body  tending  towards  a  destination, 
and  divides  the  political  rules  according  to  whether  they 
regard  the  end  towards  which  the  social  body  should 
move,  the  laws  of  its  movement,  or  its  forces.  We 
must  recall  briefly  the  classes  of  rules,  stated  in  his 


288       LAW,  SOCIAL  ECONOMY,  POLITICS 

"Filosofia  della  Politica."  The  rules,  treated  from  the 
point  of  view  of  the  result,  first  can  be  formulated  as 
follows:  Let  the  government  be  careful  to  maintain 
and  develop  the  prevalent  force  on  which  the  existence 
of  society  depends;  the  second  urges  the  government 
so  to  act  that  prosperity  will  produce  the  proper  welfare 
upon  which  man  relies,  because  contented  citizens  are 
tranquil  and  quiet.  The  prevalent  force  is  the  result 
of  the  complexity  of  all  the  physical,  intellectual,  and 
moral  forces.  These  latter  impress  their  characteristics 
upon  the  physical  and  intellectual  forces  and  constitute 
its  unity  and  give  it  its  character.  In  every  society 
there  are  four  epochs:  in  the  first,  existence  is  given  to 
society  and  it  is  therefore  concerned  with  the  substance 
and  not  the  accidentals;  in  the  second,  the  age  of  the 
fulness  of  social  life,  the  accidentals  are  considered 
without  losing  sight  of  the  substance;  in  the  third,  re- 
gard is  had  to  the  accidentals  and  not  to  the  substance, 
whence  a  decay;  in  the  fourth,  the  accidentals  of  the 
accidentals  are  thought  of  and  the  substance  of  society 
is  forgotten,  and  all  its  accidental  features  are  thought 
true  and  efficient.  This  is  the  epoch  in  which  civil 
society  is  subject  to  great  upheavals  and  turbulent  ex- 
plosions, and  can  easily  fall  into  ruin.  The  preva- 
lent force  or  the  substance  of  society  in  one  age  can 
consist  of  physical  force,  in  another  of  prudence  and 
astuteness,  and  finally  of  the  principles  of  justice.  The 
rules,  decreed  by  the  nature  of  social  bodies,  can  be 
outlined  in  this  formula;  that  the  politics  which  bring 
civil  society  nearest  to  its  natural  and  regular  construc- 
tion are  good,  and  those  which  separate  it  from  its  nature 
are  bad.  The  natural  construction  is  the  result  of  an 
equilibrium  between  population  and  wealth,  wealth 
and  power,  civil  power  and  material  force,  civil  and 
military  power  and  science,  science  and  virtue.  The 


POLITICS  ARE  MORAL  289 

rule  which  grows  out  of  the  consideration  of  the  laws 
of  movement  (hinted  at  but  not  sufficiently  developed 
by  Vico,  because  of  the  lack  of  diverse  social  trans- 
formations of  various  peoples),  can  be  reduced  to  the 
following:  The  political  means,  that  are  in  harmony 
with  the  laws  of  natural  movement  of  civil  society,  are 
good;  the  others,  contrary  to  its  nature,  are  bad.  As 
to  satisfaction,  society  first  tends  to  existence,  then  to 
power,  wealth,  and  pleasure.  True  satisfaction  lies  in 
virtue  and  justice.  The  progress  of  good  is  one  thing, 
and  progress  in  general  is  another,  as  there  is  a  difference 
between  progress  and  movement  which  consists  of  a  step 
forward  or  back,  ahead  or  across,  t>r  a  mixed  kind  of 
progress,  the  head  turned  over  the  shoulders.  We 
must  clearly  distinguish  the  movement  of  humanity 
in  its  intellectual  development  and  in  the  correspond- 
ing external  forms  of  society,  from  the  moral  and  eude- 
monistical  movement.  The  last  rule,  shown  by  the 
study  of  the  direct  and  indirect  forces  of  society,  can 
be  put  in  this  proposition;  the  political  means  that 
with  the  least  expense  and  trouble  effect  the  greatest 
social  good  are  the  best.  The  physical,  intellectual, 
and  moral  forces  of  a  society  of  a  determined  period  in 
their  reciprocal  influence  and  relation  with  the  social 
whole  can  be  worked  out  in  proper  proportion  on  an 
exact  scale  with  politico-moral  statistics. 

§  150.  Politics  are  Moral.  The  political  purposes 
and  means  cannot  be  immoral  because  they  are  con- 
nected with  the  supreme  principle  of  human  welfare. 
There  is  not  nor  can  there  be  contradiction  between 
moral  laws  and  the  true  utilities  or  permanent  interests 
of  the  individual  or  collective  person.  The  State  is 
an  ethical  organism,  and  therefore,  its  efficacious  work 
should  not  be  opposed  to  the  principles  of  the  honest 
and  just,  which  are  not  rigid  formulae,  but  which  par- 


290       LAW,  SOCIAL  ECONOMY,  POLITICS 

take  of  the  certain  and  which  are  developed  in  life 
among  the  vicissitudes  of  opportunities,  becoming 
always  more  varied  in  the  different  spheres  of  hu- 
man activity  according  to  race,  age,  and  place.  Poli- 
tics, like  law,  are  not  separate  from  ethics  nor  can 
they  be  confused,  but  are  simply  distinct.  If  we 
believe  that  politics  are  separate  from  law,  we  are 
governed  by  two  prejudices:  by  retaining  the  belief 
that  the  art  of  government  has  for  its  object  power 
and  the  accumulation  of  material  means  of  control, 
the  selfish  utility  of  the  State,  the  destruction  or  ruin 
of  other  nations;  and  by  confusing  public  with  privace 
morals.  The  first  iS  a  denial  of  the  true  finalities  of  the 
State  and  of  the  conception  of  the  moral  and  juridical 
communion  of  peoples,  whose  humanity  is  developing 
step  by  step  if  they  are  adaptable  to  progress.  The 
second  is  discordant  with  the  nature  of  the  ethical 
principle,  in  that  it  is  applicable  differently  in  different 
spheres  and  acquires  in  each  a  new  significance.  The 
individual,  for  example,  can  sacrifice  his  life,  but  the  State 
must  preserve  its  life.  Murder,  assault,  the  destruction 
of  property,  slander,  and  highway  robbery  are  serious 
crimes  if  committed  by  individuals.  In  war  such  acts 
are  permissible  for  the  State,  and  the  State  is  allowed  the 
power  of  profiting  by  illegal  or  immoral  acts;  the  recep- 
tion of  deserters  and  the  use  of  spies  are  acts  of  this 
category.  A  statesman  can  profit  by  evil;  that  is,  by 
avarice,  selfishness,  vanity,  or  simplicity.  The  evil  act, 
however,  should  be  offered  and  then  can  be  taken  advan- 
tage of,  but  must  not  be  sought  by  an  honest  politi- 
cian. The  art  of  government  or  politics,  as  an  art,  is 
not  the  same  as  the  practice  of  deceit  or  bad  faith  or 
acts  of  violence,  because  it  realizes  among  the  various 
social  contingencies  the  principles  of  a  science  which  is 
distinct  from  ethics,  but  not  substantially  opposed 


POLITICS  INCLUDE  STATESMANSHIP     291 

thereto.  The  art  of  politics  makes  statesmen  able 
to  recognize  the  laws  of  human  nature  and  society,  to 
understand  and  take  in  situations  at  a  glance,  to  measure 
the  proximate  and  distant  results  of  an  act,  develop  the 
reciprocal  influences  of  the  forces  of  the  State  and  civil 
community,  and  get  the  greatest  profit  out  of  every  occa- 
sion by  adapting  his  conduct  to  the  indefinite  variability 
of  events  in  order  to  obtain  his  end  and  the  ideal  he  has 
set  before  himself.  So  politics  have  their  part  in  the 
ideal,  because  they  are  a  practical  study  and  tend  to 
the  perfection  of  activity  and  are,  in  that,  like  ethics. 
True  politics  are  not  a  materialistic,  immoral,  brutal 
art,  nor  a  poetic,  imaginative,  sentimental  study,  but 
include  high  ethical  and  social  objects  to  be  attained 
by  the  most  opportune,  convenient,  and  efficacious 
means.  All  politics,  says  Schleiermacher,  lie  in  the 
efficiency  of  action.  Now  the  efficiency  of  action  con- 
tains elements  of  two  kinds;  elements  which  have 
to  do  with  the  finality,  and  elements  which  stand  in 
relation  to  efficiency.  The  finality  alone  is  abstraction 
and  mere  exigency;  the  efficiency  alone  manifests  a 
causal  series  of  facts,  forces  related  and  dependent, 
by  which  everything  which  already  exists  is  developed, 
but  nothing  more. 

§  151.  Politics  Include  Statesmanship.  Politics, 
Bluntschli  writes,  are  the  science  of  the  State  in 
that  it  is  alive,  and  public  law  is  the  science  of  the 
State  in  that  it  exists.  Politics  are  occupied  with  the 
ends  and  means  of  the  State.  Public  law  establishes 
its  legal  coordination.  It  is  clear,  from  this  definition, 
that  politics  should  be  in  accord  with  the  constitution, 
otherwise  a  deep  and  irrational  contradiction  is  intro- 
duced into  the  life  of  the  State.  This  is  true  only  in 
the  abstract,  because  in  fact  a  constitution  outgrows 
its  usefulness  and  becomes  an  antiquated  and  rigid 


292       LAW,  SOCIAL  ECONOMY,  POLITICS 

form.  In  this  case,  politics  should  not  be  stopped 
by  such  a  form.  Politics,  the  science  of  the  State  in 
that  it  lives,  tend  in  such  a  case  to  promote  the  recogni- 
tion of  law  in  fieri,  that  incites  the  collective  con- 
sciousness, and  tends  to  usurp  the  old  law  and  develops 
more  fully  the  sources  of  unwritten  law  to  fulfill  and 
reenforce  the  written  law.  A  constitution,  statute,  or 
ordinance  is  the  effect  of  the  given  position  of  things 
in  a  certain  state  of  society  at  a  certain  time  and  has 
no  reason  to  exist  when  the  position  of  things  is  changed 
and  when  the  state  of  society  is  different.  For  poli- 
tics, a  constitution,  statute,  or  ordinance  are  so 
many  means,  and  as  such  cannot  be  perpetual  forms. 
It  is  not  right  to  sacrifice  the  freedom  of  generations 
and  the  interests  of  life  to  the  vain  and  irrational  ideas 
of  the  past.  But  aside  from  this  variation  and  again 
considering  politics  and  public  law  of  themselves,  it 
cannot  be  denied  that  in  both  studies  there  is  the  whole 
essence  of  the  State,  conceived  of  not  only  as  a  high  union 
for  objects  of  law  and  culture,  but  also  in  the  form  of  a 
civil  community  founded  on  the  division  of  classes  of 
individuals  having  common  physical,  economic,  intel- 
lectual, moral,  and  religious  interests.  The  word  "State" 
has  two  meanings,  one  broad  and  one  narrow.  In  the 
first  sense,  a  State  contains  civil  society;  in  the  second 
it  is  as  distinct  from  society  as  the  simple  community 
of  interest  is  distinct  from  the  political  community, 
which  is,  nevertheless,  a  personality.  The  conception 
of  civil  society  contains  all  the  collective  formations 
which  are  found  between  the  individual  and  the  State; 
or  rather  between  the  family  and  the  State.  The 
definition  given  by  Mohl,  Bluntschli,  Stein,  and  Gneist 
refers  to  society  thus  understood  in  its  strict  and  proper 
sense.  Even  Hegel  looks  upon  civil  society  as  a  com- 
munity of  interests  bound  together,  spontaneously 


POLITICS  INCLUDE  STATESMANSHIP     293 

aiding  one  another,  distinct  from  the  family  and 
from  the  State,  and  occupying  a  place  between 
them.  When  society  is  thought  of  as  an  organism 
of  collective  formations  and  intermediate  centres,  it 
connotes  a  great  variety  of  groups  or  classes  which 
tend  to  diverse  objects  of  life  and  represent  common 
interests.  These  objects  may  be  physical,  economic, 
intellectual,  moral,  or  religious,  according  to  the  means 
of  satisfaction.  All  are  developed  separately  and  even 
can  be  in  a  state  of  struggle  among  themselves,  but 
they  tend  always  to  interpenetrate  and  harmonize  since 
they  are  derived  from  the  activities  of  man,  which  are  not 
of  their  own  essence  antagonistic.  Over  such  a  com- 
munity of  the  interests  of  life  rises  the  State,  which 
is  the  juridical  personality  of  a  people;  man  in  the  abstract 
forms  man  in  the  particular  of  a  nation.  The  State 
realizes  law  which  comprehends  all  human  nature  that 
develops  in  social  relations.  The  State  can  be  called  the 
juristic  form  of  the  civil  union.  Furthermore,  it  is  the 
natural  moderator  in  the  struggle  of  the  interests  and 
classes.  Hence  the  difference  between  the  social,  politi- 
cal, and  juristic  sciences;  the  first  have  for  their  imme- 
diate object  society  understood  in  the  broad  and  proper 
sense,  the  second  have  to  do  with  State,  and  the 
third  with  law.  The  social  sciences  indirectly  consider 
the  State  because  it  is  inseparable  from  society;  the 
political  sciences  consider  society.  We  know  that 
the  juristic  sciences,  although  they  have  law  as  their 
immediate  object,  cannot  get  along  without  social  and 
political  studies.  Politics  without  public  law  would 
lack  concrete  forms  and  institutions ;  public  law  without 
politics  would  be  a  casual  juristic  organism;  that  is, 
a  legal  asset  not  based  on  knowledge  of  the  finality 
of  the  State  and  the  means  at  its  disposal.  The  real 
and  living  State  arises  from  the  concrete  fusion  of 


294       LAW,  SOCIAL  ECONOMY,  POLITICS 

politics  and  public  law.  The  idea  of  the  State  becomes 
philosophical  (a  human  idea,  as  Vico  would  say),  when 
it  comprehends  the  State,  in  that  it  lives  and  exists,  and 
when  it  is  a  result  of  elements  that  are  referable  to  the 
certain  understood  in  its  generality,  and  to  the  true 
regarded  in  its  highest  rationale.  The  State  thus  con- 
ceived is  the  proper  object  of  the  philosophy  of  law, 
which  reforms  its  unity,  divided  into  politics  and  public 
law,  and  determines  its  value  and  places  it  in  relation 
with  the  other  fundamental  notions  which  form  the 
system  of  the  most  universal  juristic  ideas. 


RATIONAL  AND  POSITIVE  LAW          295 


CHAPTER   X 

RATIONAL    AND    POSITIVE    LAW.      SOURCES 
AND    APPLICATION 

THE  DISTINCTION  BETWEEN  RATIONAL  AND  POSITIVE  LAW 
IN  THEIR  NATURE  AND  IN  HISTORY.  — HABIT  AND  PRIMITIVE 
CUSTOM.  — JURISPRUDENCE  AND  ITS  OFFICE.  — LEGISLATION 
AND  THE  CODES.— THE  EFFICACY  OF  STATUTES  IN  SPACE.— 
THE  EFFICACY  OF  STATUTES  IN  TIME.  — THE  DIVERSE  THEO- 
RIES OF  RETROACTIVITY. 

§  152.  The  Difference  Between  Rational  and  Positive 
Law.  It  has  been  shown  that  law  is  composed  of  the  true 
and  the  certain.  It  is  idea  and  reality,  it  is  a  principle 
of  reason  which  develops  in  the  stages  of  life  adapting 
itself  to  the  particular  condition  of  the  people  according 
to  time  and  place.  Law  as  an  intelligible  principle 
does  not  fully  develop  in  the  historical  forms  in  which 
it  is  realized,  since  they  do  not  equal  its  content,  whence 
the  eternal  striving  for  progress  that  governs  institu- 
tions and  laws,  urging  them  to  ends  more  universal  and 
more  in  accord  with  reason.  Rational  law  is  based 
immediately  on  the  true,  and  is  universal.  The  true  is 
developed  in  the  certain,  in  which  lies  its  proof,  when 
it  is  generalized  and  historical, .  not  considered  and 
studied  in  its  several  parts.  Positive  law,  on  the  other 
hand,  is  based  immediately  on  the  certain,  and  has  a 
particular  character,  since  it  is  the  elaboration  of  popular 
or  national  consciousness.  The  certain  is  not  foreign 
to  the  true  —  it  is  its  extrinsification.  And  therefore 
ideal  elements  are  found  in  positive  law,  as  historical  ele- 


296  RATIONAL  AND  POSITIVE  LAW 

ments  are  found  in  rational  law.  The  certain  of  positive 
law,  a  detached  fragment  of  the  idea  of  law,  is  a  part  of 
reality,  and  is  not  identical  with  what  is  part  of  philos- 
ophy, that  is,  with  reality  in  general.  We  must  not 
forget  that  philosophy  endeavors  to  explain  not  this  or 
that  reality,  but  the  reality  of  knowledge  per  se. 

§  153.  The  Belief  in  a  Rational  Law.  We  have 
pointed  out  before1  that  the  Greek  philosophers  be- 
fore Aristotle  had  advanced  to  a  conception  of  a 
law  superior  to  the  positive  laws.  Aristotle  showed 
the  distinction  between  natural  and  positive  justice. 
In  his  mind,  the  just  per  se  was  a  universal  measure, 
contradistinguished  from  positive  -justice  or  that  of 
the  State.  The  latter  can  be  the  mere  determination 
of  the  statutes  or  founded  on  nature;  and  hence  the 
difference  between  legal  and  natural  justice.  We  have 
shown  that,  in  Cicero's  mind,  the  "jus  naturale"  de- 
pends on  the  "recta  ratio,"  and  the  "jus  civile"  is  con- 
nected with  the  "ratio  civilis."  Cicero  distinguishes 
the  "jus  gentium"  from  the  "jus  naturae,"  consider- 
ing the  former  as  a  form  of  positive  law  common  to  all 
peoples  and  thinking  that  in  it  lies  the  principle  of  the 
"recta  ratio."  All  the  interpreters  of  Cicero's  thought, 
however,  do  not  agree  on  this.  The  Romans  at  first 
recognized  only  their  own  law,  the  "jus  civile."  Later 
they  found,  through  their  many  relations  with  other 
peoples,  that  there  was  something  identical  in  all  laws, 
and  conceived  of  a  general  positive  law,  a  "jus  gentium 
quo  gentes  humanse  utuntur."  In  progress  of  time  and 
with  development  of  the  mind,  the  jurisconsults  based 
the  origin  of  the  "jus  gentium"  in  the  "naturalis  ratio," 
and  defined  it  "jus  quod  naturalis  ratio  inter  omnes 
homines  constituit."  Later  still  they  generalized  further 
and  came  to  the  conclusion  of  the  existence  of  a  law  more 

1  Cf.  $  44  ante. 


ORIGINS  OF  DIFFERENT  LAWS  297 

ample  and  constant  than  the  "jus  gentium,"  that  is, 
a  "jus  naturale."  Ulpian  defines  this  "quod  natura 
omnia  animalia  docuit,"  and  Cervidius  Scsevola  and 
Paulus  as  "id  quod  semper  aequum  et  bonum  est."  The 
Stoic  influence  that  controlled  the  idea  of  antecedents 
and  consequents  of  nature1  is  reached  in  this  defini- 
tion. 

§154.  Origins  of  Different  Kinds  of  Law.  St.  Thomas 
distinguishes  positive  law,  "lex  humana,"  from  the  "lex 
naturalis"  and  "lex  seterna."  The  first  is  "quaedam  ab 
hominibus  inventa"  and  should  be  part  of  the  "lex 
naturalis,"  which  in  its  turn  is  part  of  the  "lex  seterna," 
"ratio  in  Deo  existens,"  "ratio  seternse  sapientse," 
identical  with  the  "voluntas  Dei."  Now  such  a  dis- 
tinction shows  an  advance  on  the  philosophical  theories 
of  the  Middle  Ages,  in  which  natural  law  is  based  entirely 
upon  divine  will  as  shown  in  the  revealed  word.  Filo- 
musi-Guelfi,  in  his  "Concetto  del  Diritto  Positive,"  shows 
clearly  that  natural  law  began  to  lose  its  theological 
character  and  to  be  more  intimately  connected  law  in 
the  days  of  the  Renaissance  and  Reformation.  The 
attempts  of  Melancthon,  Oldendorp,  Hemmings,  and 
Winkler,  show  the  new  phase.  Grotius  denied  that  the 
Scriptures  are  the  source  of  natural  law  and  admits  the 
possibility  of  the  existence  of  law  even  in  the  case  of  the 
non-existence  of  God.  Natural  law  is  derived  from  right 
reason  to  insure  a  tranquil  society ;  civil  law  emanates 
from  the  common  will  of  men.  So  Hobbes  recognized 
natural  law,  "dictamen  rectae  rationis,"  which  imposes 
peace  and  is  a  guaranty,  and  positive  law,  the  effect  of 
the  sovereign  will  which  harmonizes  with  natural  law  in 
keeping  the  peace.  Positive  law  for  the  rest  is  in 
antithesis  to  natural  law  regarded  as  the  original  law  of 
the  state  of  nature  and  fear. 

lCf.  §  107  ante. 


298         RATIONAL  AND  POSITIVE  LAW 

§  155.  Rational  and  Positive  Law  Compared.  Puf- 
fendorf  finds  the  fundamental  rationale  of  law  in 
divine  command  and  makes  science  take  a  backward 
step  here  as  well  as  in  the  discussion  of  the  relation 
between  morals  and  law.  St.  Thomas  and  Wolff  both 
believe  that  natural  law  is  based  on  human  nature  and 
that  positive  law  arises  from  will  or  agreement;  that 
the  first  is  given  by  reason  and  the  latter  enacted 
by  the  State.  Filomusi-Guelfi  shows  the  germ  of 
distinction  in  the  doctrine  of  Rousseau,  because  the 
principle  of  inalienable  liberty  is  the  law  of  nature,  and 
the  will  of  the  people  is  the  principle  of  positive  law. 
There  is  no  doubt  at  all  in  Kant's  mind,  because  he 
strictly  separates  rational  law  (the  complexity  of  norms 
which  create  external  legislation)  from  positive  law  (the 
collection  of  statutes  which  exist  as  such,  and  which  de- 
pend upon  the  will  of  the  legislature  governed  by  reason) . 
Fichte  sees  the  realization  of  natural  law  in  positive 
or  historical  law.  Schelling  starts  out  with  the  prin- 
ciple of  reason  as  the  identity  of  the  ideal  and  the  real, 
which  he  reaches  by  a  simple  intuition  without  a  dialectic 
process.  He  places  the  same  difference  between  the 
two  terms  that  there  is  in  his  system  between  the  ideal 
and  the  real,  both  being  originally  the  same.  In  his 
mind,  positive  law  is  the  necessary  form  of  natural  law. 
Hegel  shows  that  rational  law  is  based  on  universal 
principles.while  positive  law  is  determined  by  the  national 
characteristics,  religion,  and  degree  of  civilization  of  the 
people.  Positive  law  is  not  contradictory  of  rational 
law,  which  by  degrees  appears  in  it.  Hegel  is  wrong 
only  in  saying  that  the  positive  law  stands  in  relation 
to  rational  as  the  Pandects  stand  to  the  Institutes. 
The  simile  is  bad,  because  the  Pandects  and  Institutes 
are  both  treatises  of  positive  law,  the  one  full,  and  the 
other  restricted  to  the  use  of  the  schools. 


DISTINCTION  BETWEEN  LAWS          299 

§  156.  Distinction  Between  Rational  and  Positive  Law 
among  the  Positivists.  The  distinction  between  rational 
and  positive  law  is  recognized  in  positivism  in  diverse 
forms.  Spencer,  in  "The  Man  Versus  the  State,"  admits 
a  natural  law  based  on  the  uniform  and  constant  con- 
ditions of  existence.  He  is  bitterly  criticized  by  other 
positivist  philosophers  for  departing  from  historical  truth 
and  contradicting  the  laws  of  change  and  the  relativity  of 
cognition,  and  considering  man  only  as  he  is  shown  by 
biology.  There  are  writers  who  say  that  this  conception 
of  Spencer  is  a  relic  of  his  early  theory  contained  in  his 
"Social  Statics,"  according  to  which  morals  and  law  are 
based  on  the  realization  of  the  divine  idea.  God  fore- 
ordains the  happiness  of  man,  which  is  obtained  by  the 
observation  of  the  inflexible  laws  of  existence.  These 
express  a  connection  between  cause  and  effect,  between 
conduct  and  result,  and  determine  necessarily  what  is 
good  or  evil,  just  or  unjust.  If  the  exercise  of  faculties 
is  indispensable  to  human  happiness,  the  duty  on  one 
hand  and  the  right  on  the  other  to  exercise  them  are 
derived  from  it.  These  are  the  very  words  of  Vanni, 
who  gives  a  resum£  of  the  Spencerian  doctrine,  and  says 
at  the  same  time  that  such  an  absolute  ethical  system 
cannot  take  account  of  actual  imperfections,  and  there- 
fore represents  the  law  of  ideal  humanity;  and  that 
eliminating  the  theological  and  teleological  conceptions, 
there  remains  in  the  later  theories  of  the  English  philos- 
opher the  idea  of  an  intrinsic  reason  in  morals  and  law 
due  to  the  conditions  of  existence,  and  of  a  law  not 
created  by  the  State  but  growing  but  of  relations  estab- 
lished by  nature.  This  idea  is  clearly  developed  in 
Spencer's  last  book,  "Justice,"  we  may  add.  Spencer 
says  in  its  preface  that  he  wishes  to  explain  justice  first, 
abstracting  every  presupposition  belonging  to  a  super- 
natural order.  He  distinguishes  positive  law,  the  work 


300  RATIONAL  AND  POSITIVE  LAW 

of  the  State,  from  natural  or  potential  law,  corresponding 
to  social  ideality,  absolutely  true  and  just.  This  kind 
of  law,  he  says,  has  its  base  in  the  nature  of  man,  who 
wills  freely  according  to  the  dictates  of  reason.  Vanni 
accepts  the  conception  of  a  law  founded  on  the  indis- 
pensable conditions  of  existence  and  the  constitution  of 
things,  and  says  that  it  is  the  true  part  of  the  old  theory 
of  natural  law. 

§  157.  Custom  is  the  First  Source  of  Positive  Law. 
The  first  and  chief  source  of  positive  law  is  custom, 
which  presupposes  the  juristic  sentiment  of  people  and 
certain  external,  constant,  and  general  acts  by  which  it 
is  shown.  Ulpian  says,  "Mores  sunt  tacitus  consensus 
populi  longa  consuetudine  inveteratus."  A  need  arises 
in  society  and  demands  a  legal  recognition.  At  the 
beginning,  its  satisfaction  is  obtained  through  transi- 
tory and  isolated  acts,  and  then  a  general  conviction 
of  the  necessity  of  this  satisfaction  grows.  The  acts 
are  repeated  with  uniformity  and  constancy  by  the 
greater  number  of  the  members  of  the  community. 
This  leads  to  the  appearance  of  the  "diuturni  mores 
consensus  utentium  comprobati,"  of  the  customary  or 
unwritten  law,  which  has  its  expression  in  custom. 
The  factors  of  struggle  and  adaptation  enter  in  such  a 
process,  but  its  character  of  immediateness  is  beyond 
controversy,  because  the  process  is  entirely  intuitive 
and  irreflexive  and  needs  no  special  organ  of  the  State. 
Sometimes,  this  irreflexive  and  unconscious  process  has 
its  beginning  in  a  conscious  act  of  a  single  individual, 
imitated  by  others.  Who  is  ignorant  of  the  influence 
of  the  example  of  Lucius  Lentulus,  Augustus,  and  Labio 
on  the  Roman  law  concerning  codicils?  Is  it  not 
often  true  that  a  local  dialect  forced  on  or  chosen  by  a 
people  becomes  a  national  language?  Does  not  a  type 
or  individual  characteristic,  strongly  emphasized  and 


PRIMITIVE  CUSTOM  301 

in  a  position  of  attraction,  become  a  model  for  all  in  an 
age  where  the  spirit  of  imitation  is  strong?  With  this 
premise,  the  statement  of  the  Glossators  may  be  very  far 
from  true  that  holds  that  the  essence  of  custom  lies  in  the 
action  itself  as  well  as  the  theory;  of  Puchta,1  that  bases 
it  entirely  on  general  conviction,  and  of  Savigny,  in  his 
"System  des  Heutigen  Romischen  Rechts."  Custom 
involves  necessarily  the  two  conceptions  of  the  con- 
viction and  the  constant  and  general  use  which  have 
the  mutual  relation  of  a  basic  principle  and  an 
external  expression.  It  can  be  easily  understood  that  it 
must  contain  as  positive  law  the  true.  In  other  words 
it  must  be  "rationabilis"  and  must  in  progressive  times 
be  recognized  as  law  in  order  to  have  an  obligatory  force. 
§  158.  Primitive  Custom  Differs  from  General  Custom. 
But  custom,  so  conceived,  is  particular  and  is  already 
a  distinct  legal  form,  and  as  such  is  posterior  to  the  primi- 
tive custom  imposed  by  a  single,  indivisible,  and  abso- 
lute power  (of  which  Bagehot  speaks),  which  tended  to 
form  the  tissues  of  legality,  reducing,  as  Vico  said,  the 
inhuman  and  wild  Poliphemi  to  obedience.  Before 
legal  customs  and  norms,  before  religious  decrees,  there 
were  customs  and  norms  of  another  kind,  appertaining 
to  the  government  of  ceremonies,  according  to  Spencer. 
Maine  points  out  in  his  "Ancient  Law"  that  the  Homeric 
Themis  is  divine,  inspiring  the  sentences  of  the  gods  and 
kings;  that  the  succession  of  these  sentences,  similar 
in  similar  cases,  created  custom;  and  that  in  Homer  the 
word  vd/j-os  is  not  found,  nor  is  there  any  conception 
of  a  god,  the  author  of  a  code.  'He  cites  some  obser- 
vations of  Grote  which  seem  new;  —  that  in  the  begin- 
ning heroic  royalty  prevailed  of  divine  right,  then  an 
aristocracy,  religious  in  the  Orient,  military  and  civil 
in  the  Occident;  and  that  the  aristocracy  exercised  a 

'Das  Gewohnheitarecht. 


302         RATIONAL  AND  POSITIVE  LAW 

monopoly  in  the  interpretation  of  law,  and  began  thus 
a  customary  law.  Leist,  in  "Graeco-Italische  Rechts- 
geschichte,"  thinks  that  positive  religious  decrees  pre- 
ceded the  formation  of  custom.  Pantaleoni,  in  "Saggio 
Intornoad  una  Quistione  di  Diritto  Preistorico,"  severely 
criticizes  the  theories  of  Maine  in  respect  to  Homer, 
but  he  thinks  that  there  is  no  doubt  that  the  opinion 
of  the  English  writer  can  be  applied  to  a  more  remote 
and  ante-Homeric  period.  Here  it  may  be  well  to  point 
out  that  Maine,  who  was  the  first  to  write  that  the  re- 
petition of  the  judgments  of  the  patriarch -kings  created 
custom,  later  gives  us  to  understand  that  such  judg- 
ments are  on  the  other  hand  the  result  of  custom.  He 
says  nothing,  however,  as  to  the  origin  of  this  custom 
or  the  method  of  its  formation,  since  he  studied  a  phase 
of  relatively  advanced  evolution  which  contained  the 
patriarchal  society  and  did  not  go  back  to  the  begin- 
ning. Maine  considered  an  already  formed  law;  he 
cleared  away  the  confusion  between  this  and  other  social 
forces,  especially  religion,  but  he  started  out  from  the 
time  in  which  legal  custom  appears.  Now,  it  is  not 
possible  to  go  back  to  the  first  origins  of  law  without 
a  generic  custom  which  the  greater  part  of  the  recent 
writers  consider  as  the  result  of  imposition,  after  which, 
when  the  legal  tissue  has  been  built  up  and  strengthened, 
other  particular  customs,  distinct  among  themselves, 
such  as  purely  legal  customs,  spontaneously  come  into 
existence.  Certainly,  the  observation  of  the  custom- 
ary norm  is  not  possible  unless  man  has  first  acquired 
the  habit  of  obedience  to  some  norm.  Primitive  man 
was  not  in  the  least  disposed  to  submission  to  a  precept, 
except  under  a  rigorously  coercive  discipline.  The 
observations  of  Grote,  repeated  by  Maine,  are  old  and 
are  found  in  Vico's  works,  whose  ideas  on  the  divine 
prerogatives  of  the  primitive  age  are  known.  Vico 


CUSTOM  LOSES  IMPORTANCE  303 

said  that  customs  existed  as  examples  before  the  laws, 
which  are  universal ;  that  the  laws  of  the  Twelve  Tables 
are  preceded  by  the  customs  of  the  Fathers.  He  says 
further  that  the  penalty  inflicted  on  Horatius  is  an 
example  of  the  custom  of  the  ancients;  and  that  the 
governments  of  the  oligarchs  were  ruled  by  custom, 
the  custody  and  inalterability  of  the  customs  of  the 
ancients  being  the  base  of  this  regime.  The  law  of  this 
epoch  is  a  hidden  mystery.  Maine  is  right  in  point- 
ing out  that  in  primitive  times  the  recognition  of  a  social 
authority  was  not  necessary  for  the  existence  of  custom. 
Law  is  shown  spontaneously  in  custom,  and  no  one  dis- 
putes its  validity  of  form  or  demands  its  recognition  on 
the  part  of  the  State  in  such  an  age.  An  extensive 
development  of  mind  and  a  profound  analysis  of  fact  is 
needed  before  the  conception  of  the  necessity  of  the 
recognition  of  this  source  of  the  law  on  the  part  of  the 
State  is  felt.  Such  a  conception  is  the  fruit  of  pure 
reflection  in  the  ages  of  reason.  But  if  originally  there 
were  no  such  recognition,  and  if  custom  had  its  worth 
by  its  own  force  without  having  need  of  an  authority 
to  decree  it,  later  it  was  explicated,  made  certain,  and 
strengthened,  losing  the  elements  foreign  to  it  by  the 
work  of  special  bodies  of  magistrates,  and  of  those 
learned  in  the  law,  who  formulated  and  applied  it.  In 
Rome  the  College  of  Pontifices,  learned  in  the  law,  and 
the  praetor  interpreted  the  law.  At  the  beginning  the 
poets  who  stood  by  the  side  of  the  Indian  and  Greek 
kings,  inspiring  their  decisions,  were  the  depositories  of 
these  customs.  After  the  days -of  the  College,  the 
jurisconsults  came  with  the  mission  of  clearing,  develop- 
ing, and  purifying  the  first  and  obscure  source  of  law. 

§  159.  Custom  Loses  Importance,  as  the  Statutes  Mul- 
tiply. In  historical  times,  with  natural  reason  fully  de- 
veloped, custom  which  represents  mere  juristic  intuition 


304  RATIONAL  AND  POSITIVE  LAW 

cannot  have  its  old  extent  and  former  efficacy.  When 
reflection  about  universal  principles  dominates,  and  the 
organization  of  public  power  is  developed,  custom  cannot 
have  the  force  of  annulling  the  laws,  as  it  had  in  Rome. 
To-day  the  precept  of  the  jurisconsult  is  no  longer  true; 
"Quare  rectissine  etiam  illud  receptum  est  ut  legas  non 
solum  suffragio  legislatoris  sed  etiam  tactio  consensu 
omnium  per  desuetudinem  abrogantur."  Custom  has 
entirely  lost  its  control  in  criminal  law,  because  no  penalty 
can  be  inflicted  without  a  statute,  and  has  preserved  only 
the  part  of  it  that  is  essentially  voluntary  in  civil  law.  1 1 
has  a  marked  development  in  international  law  in  which 
codification  has  been  lacking,  and  in  commercial  law 
in  which  codification  has  had  to  assume  a  very  general 
character  in  order  not  to  hinder  the  indefinite  and  con- 
stantly changing  combinations  of  the  life  of  trade  and 
exchange,  and  to  keep  the  different  people  together 
through  common  and  useful  customs  favoring  the 
cosmopolitanism  of  mercantile  interests. 

§  160.  Learned  Research  is  the  Second  Source  of  Law. 
The  second  source  of  positive  law  is  doctrine  or  juris- 
prudence, which  represents  scientific  reflection  on  the 
statutes  and  general  convictions  shown  by  customs. 
It  is  considered,  however,  as  the  immediate  and  supple- 
mentary form  of  customary  and  legislative  law.  Its 
action  in  respect  to  law  is  first  practical  and  is  shown 
in  the  "usus  fori"  or  "rerum  perpetuo  similiter  judica- 
tarum  auctoritas" :  and  then  becomes  theoretical  through 
exegesis  and  systemization.  Jurisprudence  tends  to  inter- 
pretate  the  living  law,  to  supplement  it  with  equity,  and 
to  show  the  necessity  or  convenience  of  accepting  new 
principles.  Interpretation  means  the  understanding  and 
reproduction  with  proper  knowledge  of  the  thought  of 
the  legislator.  If  all  the  laws  should  be  understood, 
we  have  to  interpret  not  only  the  obscure  laws,  as 


DISTINCT  FROM  CUSTOM  305 

Borrelli  says,  but  even  those  that  are  clear.  It  is 
customary  in  the  schools  to  distinguish  interpretation 
by  its  elements  of  efficiency  and  origin.  In  regard  to 
its  elements,  interpretation  is  literal,  logical,  historical, 
and  systematic,  depending  upon  whether  it  has  to  do 
with  the  word  the  mens  legis,  with  conditions  of  the  time 
and  organic  complexity  of  the  legislative  disposition ;  as 
to  efficiency  it  is  declaratory,  extensive,  and  restrictive ; 
as  to  origin  it  is  judicial,  scientific,  and  legislative,  depend- 
ing upon  whether  it  is  made  by  the  judge,  the  interpre- 
ters, or  the  legislator.  Donnello  calls  these  divisions 
popular;  Savigny  calls  them  strange.  They  point  out 
that  all  interpretation  is  a  free  act  of  the  intellect,  of  a 
learned  and  declaratory  character,  and  uses  the  four  ele- 
ments indicated,  which  are  only  means  and  not  species 
or  forms.  The  modern  codes  decree  that  the  judge  can 
never  refuse  to  apply  a  law  alleging  its  obscurity  as  a 
pretext,  but  must  attribute  to  it  a  meaning  in  accordance 
with  the  literal  meaning  of  the  words  and  the  intention 
of  the  legislature,  and  when  he  cannot  decide  the  case 
with  a  precise  legal  disposition  he  can  have  recourse  to 
other  dispositions  of  similar  cases.  When  the  case 
remains  at  all  doubtful  it  should  be  decided  according 
to  the  general  principles  of  law.  Such  principles  are 
not  those  of  abstract  natural  or  rational  law,  but  rather 
those  of  the  philosophy  of  positive  law,  a  part,  however, 
of  philosophy  of  law  in  general.  Thus,  the  science  of 
law  and  its  philosophy  become  sources  of  law,  and  form, 
together  with  customs  and  statutes, -the  juridical  inherit- 
ance of  a  people. 

§  161.  Jurisprudence  is  Distinct  from  Custom.  Thus 
much  understood,  it  is  clear  that  Bluhme,  in  "Encyclo- 
paclie  Jurische,"  is  wrong  in  regarding  jurisprudence  only 
as  a  reflexive  form  of  customary  law;  and  that  Stahl 
in  "Philosophic  des  Rechts,"  Marezzoll  in  "Lehrbuch 


306  RATIONAL  AND  POSITIVE  LAW 

der  Institutes  des  Romischen  Rechts,"  and  Bruns  in 
"Encyclopedic  der  Rechtswissenschaft,"  are  wrong  in 
denying  that  it  is  a  source  of  law.  Even  historically 
this  statement  is  not  exact  because  there  have  been 
instances  in  which  some  rules  have  had  practical  effi- 
ciency through  the  work  of  science.  Warnkonig  in  the 
"Encyclopadie"  and  Savigny  point  out  that  analogical 
interpretation  is  not  a  kind  of  extensive  interpretation 
because  the  former  fills  a  gap  and  the  latter  extends 
the  sense  of  the  law.  Interpretation  by  analogy  is 
allowed  through  the  conception  that  the  judge  cannot 
refuse  to  apply  the  law,  and  not  through  strict  princi- 
ples of  interpretation.  In  analogy,  a  conclusion  is  reached 
by  coordinating  one  thing  to  another,  where  if  they 
were  coordinate  the  rule  of  the  first  case  would  not  be 
general  but  special,  as  in  exceptions  and  as  in  the  case 
of  the  "jus  singulare."  Besides  interpretation,  jurispru- 
dence supplements  law  by  equity,  which  is  not  in  the 
least  opposed  to  law.  Equity,  Aristotle  taught,  is  better 
justice,  differing  from  legal  justice  and  correcting  it.  It 
is  the  law  itself  in  opposition  to  its  literal  and  narrow 
form.  Cicero  says  "jus  civiliestsequitas."  Celsus  defines 
the  science  of  law  as  "ars  boni  et  sequi;"  so  the  sentence 
of  Paulus,  that  natural  law  consists  in  "id  quod  semper 
bonum  ac  aequum  est."  It  is  the  constant  thought  of 
the  Roman  jurisconsults  that  the  "legitimum"  lay  in 
the  word  and  in  the  letter  of  the  law.  "Verba  et  literse 
legis"  should  be  based  on  the  "aequum."  Beyond  the 
"aequum"  there  is  the  "rigor  juris,"  the  "jus  durum 
summum  callidum,"  the  "angustissima  formula,"  and 
the  "summa  crux."  The  "aequitas"  is  "jus  benginum, 
temporatum,  naturalis  justitia,  ratio  humanitatis."  All 
the  history  of  Roman  law  shows  this  progressive  move- 
ment from  the  "legitimum"  to  the  "bonum,"  in  which 
"fictiones"  forms  of  analogy,  capable  of  modifying  the 


STATUTES  THE  THIRD  SOURCE          307 

substance  of  law,  without  altering  its  appearance,  play 
no  small  part.  Finally,  jurisprudence  expresses  its 
desire  of  reform,  the  result  of  a  long  and  attentive 
critical  practical  examination  of  the  legal  institutions, 
and  encourages  legislative  changes  and  new  codifications. 
§  162.  Statutes  are  the  Third  Source  of  Positive  Law. 
The  third  source  of  positive  law,  independent  like 
custom,  and  not  supplementary  like  jurisprudence,  more 
certain  and  general  than  either  and  at  the  same  time 
reflexive,  is  the  statutes.  These  are  the  expression  of 
the  sovereign  will  of  the  State,  or  people  formed  in  a 
State,  and  are  reducible  to  a  "communis  reipublicae 
sponsio,"  to  a  "commune  prseceptum"  according  to  the 
Roman  definition.  A  statute  is  an  independent  source 
because  the  direct  and  formal  effect  of  the  supreme  social 
authority,  and  is  reflexive  because  it  is  the  result  of  the 
meditation  of  the  legislators  and  jurisconsults.  It  is 
more  certain  and  general  than  custom  and  jurispru- 
dence because  it  is  a  fixed  and  abstract  formula  in- 
telligible to  all  and  withdrawn  from  the  interpretation 
of  the  judges  and  the  discussions  of  the  scientific 
schools.  It  is  connected  with  jurisprudence,  in  its 
learned  preparation  and  development,  and  with  custom, 
which  at  the  beginning  furnishes  the  material,  although 
later  it  is  formed  more  on  a  scientific  basis.  It  is 
not  born  of  rocks  and  trees,  as  Plato  points  out,  but 
it  presupposes  a  number  of  natural  and  historical 
conditions  which  constitute  its  bases  in  fact.  At  this 
point,  it  is  useful  to  point  out  that  the  definition  of 
a  statute  as  the  expression  of  the  sovereign  will  of  the 
State  can  lead  to  error,  and  that  it  is  necessary  to 
avoid  every  possible  error  about  the  relations  of  a 
statute.  The  English  analytical  school,  represented  by 
Bentham  and  Austin,  says  that  the  notion  of  law,  as 
a  statute,  is  inseparable  from  that  of  sovereign  power 


308          RATIONAL  AND  POSITIVE  LAW 

and  its  coercive  force;  these  ideas  are  found  in  the 
above  definition  of  a  statute.  Maine  disagrees  with 
the  analytical  school  and  thinks  that  the  definition  is 
exact  if  it  refers  to  an  advanced  state  of  civilization  and 
therefore  to  a  mature  juridical  system,  but  that  it  is 
inexact  if  applied  to  the  earlier  stages.  In  primitive 
times,  law  was  not  the  product  of  a  legislative  organ 
but  lay  in  the  complexity  of  venerated  customs.  Their 
obligatoriness  did  not  depend  upon  the  coercive  force 
of  sovereign  power,  but  grew  out  of  public  opinion 
and  religious  beliefs.  We  have  said  before1  that  Maine 
did  not  see  that  the  authority  of  power,  coercion,  and 
obligation  were  preexistent  in  an  indistinct  form  in 
generic  custom,  from  which  various  customs  developed, 
among  which  was  the  distinct  juristic  custom.  Generic 
custom  embraced  all  the  norms  which  were  resolved 
into  authoritative  traditions,  respected  for  themselves. 
Authority  is  given  by  custom,  and  the  obligation  of  its 
observation  is  connected  with  the  fear  of  offending  the 
will  of  dead  ancestors,  whose  spirits  influence  human 
acts.  This  general  fear  is  a  coercive  force,  and  is  domi- 
nant in  conduct  regulated  by  general  opinion.  The  three 
conceptions,  included  in  the  notion  of  the  statutes,  do  not 
develop  all  at  once  in  an  epoch  of  reflection,  but  have 
their  antecedents  in  the  most  remote  times  from  which, 
therefore,  according  to  Vico,  the  study  should  begin 
because  the  thing  began  then. 

§  163.  Statutes  are  not  Mere  Growths.  As  to  the 
relation  between  the  statutes  and  environment,  we 
must  remember  that  it  can  be  exaggerated  in  the 
sense  that  the  formation  of  law  and  of  statutes 
is  looked  upon  as  the  natural  unconscious  and  slow 
product  of  things  that  move  of  themselves  without 
force  or  struggle.  Neither  should  an  excessive  action 

1  Cf.  §  158  ante. 


STATUTES  NOT  MERE  GROWTHS         309 

be  attributed  to  spontaneity.  Vico  taught  that  the 
human  world  is  developed  through  modifications  of 
mind.  Consequently,  it  is  necessary  to  attribute  a 
large  part  to  the  factor  of  reflection.  Now,  it  is  generally 
admitted  that  the  historical  school  is  inclined  to  this 
exaggeration,  a  fact  manifest  in  the  theory  of  Charles 
Comte,  the  author  of  "Traite  de  Legislation,"  and  in  the 
doctrines  of  many  positivists,  disposed  to  look  upon  legis- 
lators as  kinds  of  copyists  or  secretaries  of  their  times 
and  registrars  of  customs,  and  upon  legislation  as  natural 
history.  If  this  were  true,  science  would  have  only 
the  duty  of  describing  facts  and  not  of  giving  advice, 
since  the  statutes  would  be  the  real  powers,  the  relations 
of  nature,  of  which  Montesquieu  speaks,  which  deter- 
mine the  methods  of  the  existence  and  development  of 
a  people;  it  would  be  useless  to  go  to  the  legislator  and 
it  would  be  vain  to  hope  anything  from  him.  Without 
doubt  these  theories  are  partially  true,  in  that  environ- 
ment influences  man  and  in  primitive  times  subjected 
him,  and  in  that  nature  determines  man  and  gives  him 
his  characteristics,  and  makes  him  similar,  but  does  not 
make  him  identical  (as  Gioberti  says).  It  is  clear  that 
the  statutes  should  conform  to  the  conditions  of  space 
and  time  and  the  customs  of  the  people.  About  this 
there  can  be  no  question,  but  then  comes  the  moment 
in  which  man  reacts  and  takes  his  revenge  by  dominating 
them  in  his  turn,  modifying  and  transforming  their 
elements  and  forces,  and  beginning  the  course  of  civili- 
zation. In  such  a  moment,  reflection  or  mind  is  preva- 
lent and  human  liberty  begins,  and  a  second  cycle  in 
creation  from  man  to  nature  opens;  —  the  first  is  from 
nature  to  man ;  —  two  cycles  visible  in  the  life  of  the 
individual  who  epitomizes  the  life  of  the  species.  In 
law,  nature  enters  with  all  its  influence  on  man  but 
man  also  enters  with  his  reflection  and  free  transforming 


310          RATIONAL  AND  POSITIVE  LAW 

activity.  Statutes,  as  the  work  of  man,  succeed  within 
certain  confines  in  producing  modifications;  environ- 
ment and  experience  prove  this.  As  the  sources  of 
positive  law  increase  and  are  higher,  we  see  less  of  the 
subjection  of  man  to  nature.  And  as  legislative  law  is 
explicated,  the  power  of  the  statutes  to  modify  the 
environment  increases,  because  science  prevails  and  with 
science,  freedom.  We  have  said  that  the  doctrines 
pointed  out  are  not  speculatively  true  because  develop- 
ment implies  force,  whose  idea  is  not  complete  without 
the  notion  of  obstacles  to  conquer.  Neither  are  they 
historically  true  because  law  has  run  its  course  between 
cruel  contrasts  and  struggles.  Such  doctrines  are  also 
dangerous  because  they  lead  men  to  inertia,  teaching 
that  things  fulfill  themselves  with  little  or  no  coopera- 
tion on  their  part. 

§  164.  Laws  should  be  Clear,  Precise,  and  Indubitable. 
Statutes,  says  Trendelenburg,  should  be  stated  in 
serious  and  dignified  language  since  they  are  ethical 
will,  that  is,  superior  to  the  passions.  They  should  be 
brief  and  calm  (since  they  are  potent  will),  and  as  intelli- 
gible to  all  as  common  speech.  The  expression  of  the 
social  will  should  be  precise  and  incisive.  Precision  of 
conception  is  limited  by  precision  of  definition.  In  the 
sciences  definitions  show  the  boundaries  of  the  concep- 
tions. In  law  they  are  something  more,  and  determine 
the  limits  and  legal  relations,  and  represent  a  true 
creative  force.  The  ancient  maxim,  "Omnis  definitio  in 
jure  civili  est  periculosa  parum  enim  est  utnon  subverti 
possit,"  shows  the  difficulty  which  there  is  in  compre- 
hending the  changeable  relations  of  life  in  a  clear  and 
precise  conception,  but  one  cannot  deny  the  necessity 
of  exact  definitions,  custodians  of  the  certainty  of  law, 
kept  within  the  borders  of  legal  determination.  The 
definitions  of  law  are  sometimes,  therefore,  nominally 


CODES  311 

declaratory,  and  sometimes  are  creative;  there  are  not 
lacking  kinds  in  which  all  the  essence  of  concept  is  not 
contained,  but  only  an  element  or  some  characteristic 
sign  of  it. 

§  165.  Codes.  As  statutes  multiply  the  need  of  com- 
pilation is  felt.  They  may  be  private  or  public,  made 
according  to  chronological  order  or  according  to  subject- 
matter.  After  the  compilation,  a  higher  need  is  felt,  that 
of  the  code  which  is  the  systemization  or  organization  of 
juridical  institutions  and  laws.  A  compilation  embraces 
many  laws  which  remain  distinct;  a  codification  contains 
a  single  statute  extending  over  the  greater  part  of  the 
field  of  law.  It  is  error  to  believe  that  codes  are  suggested 
for  political  ends  and  not  for  scientific  reasons,  because 
their  necessity  is  confused  with  the  profound  demand 
of  systemization  in  the  sphere  of  cognition,  and  is 
shown  in  times  of  fully  developed  scientific  reflection. 
This  does  not  prevent  codification  helping  the  educa- 
tion of  a  people  and  consolidating  their  unity.  The 
modern  idea  of  codification,  which  made  its  appearance  in 
the  XVI  Ilth  Century,  became  then  a  general  and  powerful 
desire  of  civil  nations,  because  the  mind  felt  the  need  of 
synthesis,  because  of  the  great  confusion  in  the  law, 
which  entailed  great  inequalities.  Not  the  least  cause 
of  codifications  has  been  the  school  of  Grotius  with  its 
idea  of  a  natural  universal  law  to  which  positive  law 
should  be  as  far  as  possible  assimilated.  Leibnitz  pointed 
out  the  necessity  of  codification  (shown  in  Germany 
by  the  followers  of  Wolff).  In  Prussia,  an  eternal  terri- 
torial law  based  on  reason  was  wanted.  In  Austria 
there  was  a  demand  for  an  equal  and  stable  law  which 
would  have  regard  to  the  universal  law  of  reason.  In 
those  days  it  was  generally  believed  that  the  Roman  law 
was  the  "ratio  scripta"  or  "jus  naturale"  realized.  The 
French  Code  rested  on  the  firm  ground  of  natural  law 


312          RATIONAL  AND  POSITIVE  LAW 

and  on  the  virgin  soil  of  the  Republic.  The  Franco- 
Prussian  War  revived  patriotic  sentiment  and  gave 
Thibaut  a  desire  for  a  common  German  Code.  Savigny 
was  opposed  to  this  because  he,  with  his  school,  con- 
sidered codification  as  the  petrification  of  the  law  and 
the  cause  of  the  prevalence  of  conceptions  not  based 
on  historical  sources,  and  as  an  incentive  for  mediocre 
commentaries.  All  agree  in  admitting  that  if  a  code 
had  been  made  in  Germany  at  the  beginning  of  the  last 
century,  the  law  could  not  have  obtained  the  broad 
scientific  development  which  it  has  to-day.  Savigny 
was  right  in  speaking  of  the  probable  dangers  of  codifi- 
cation for  Germany  at  the  time  the  motion  was  made. 
But  is  he  right  in  speaking  of  codes  in  general?  Savigny 
does  not  absolutely  exclude  codification,  because  in 
some  of  his  later  writings  after  the  publication  of  "Vom 
Beruf  Unser  Zeit  fur  Gesetzgebung  und  Rechtswissen- 
schaft,"  he  says  that  there  can  be  cases  in  which 
codification  is  not  to  be  condemned.  But  it  cannot 
be  denied  that  outside  of  such  rare  cases  he  is  the 
enemy  of  codification,  which  has  the  merit  of  being 
the  highest  synthesis  of  laws  of  the  age  of  reason, 
and  cannot  be  called  a  crystalization  of  the  law,  because 
its  parts  can  be  constantly  amended  according  to  results 
of  experience,  or  it  can  be  entirely  reenacted,  as  we  have 
seen  done  in  our  own  day.  To-day  there  is  an  effort 
to  base  codes  on  life  and  the  historical  conditions  of 
society.  These  are  not  formulated  in  an  endeavor  to 
find  in  reality  the  only  principles  of  reason.  The  ancient 
conception  of  the  "jus  naturale"  is  no  longer  dominant 
after  law  has  been  conceived  of  as  the  human  idea. 
Modern  science  proceeds  on  the  history  of  human  ideas.  It 
consists  in  the  systemization  of 'ideas  according  to  facts. 
It  prepares  codes  and  makes  them  show  the  real  state 
of  human  relations,  preventing  the  introduction  therein 


LAW  IN  RELATION  TO  SPACE  313 

of  imaginary  or  purely  subjective  notions.  Neither  is 
it  tenable  to  hold  that  the  scientific  explication  of 
codified  law,  understood  in  its  integrity,  is  a  subject 
of  exclusively  mediocre  exegesis. 

§  166.  Law  in  Relation  to  Space.  That  ideal  prin- 
ciple, that  is,  the  proportion  or  measure  of  things  of 
which  law  consists  as  realized  in  the  life  and  con- 
sciousness of  peoples,  demands  coexistence  and  suc- 
cession, space  and  time.  But  if  space  and  time  are 
two  conditions  of  the  development  of  law,  without 
which  law  would  be  a  pure  and  abstract  logical  idea, 
they  are  certainly  not  its  causes.  Law  is  always  a  prin- 
ciple superior  to  the  conceptions  of  coexistence  and 
succession.  To  make  law  the  same  as  space  is  to  con- 
fuse-the  person  with  the  place  in  which  he  resides,  and 
with  nature,  which  is  the  matter  and  means  of  human 
activity.  To  make  law  the  same  as  time  means  to 
exchange  its  essence  for  a  transitory  form  and  to  make 
injustice  sometimes  legitimate.  Space,  as  Pepere  writes 
in  "Encyklopadie  der  Rechtswissenschaft,"  has  two 
relations  with  law.  From  one  point  of  view  it  appears 
to  us  as  a  territory  or  extent  in  which  law  as  positive 
enactments  has  control.  If  positive  law  is  the  expression 
of  popular  consciousness  and  of  the  will  of  the  State, 
the  organ  of  the  law,  it  can  be  inferred  that  it  is  terri- 
torial, and  extends  as  far  as  the  supreme  power  of  the 
State  itself  throughout  the  whole  domain ;  but  this  idea 
of  the  territoriality  of  the  statutes  is  not  applicable 
when  private  relations  are  found  that  have  been  caused 
by  foreign  laws,  in  which  case  the  "lex  originis"  and  not 
the  "lex  loci"  governs,  as  is  seen  particularly  in  cases  of 
private  international  law.  From  another  aspect,  space 
can  be  considered  as  the  material  over  which  the  energy 
of  the  person  can  extend  to  attain  his  ends,  and  here  we 
see  the  connection  between  the  natural  sciences  and  law, 


314          RATIONAL  AND  POSITIVE  LAW 

which  assumes  different  and  various  features  or  atti- 
tudes according  to  the  nature  of  the  natural  object  to 
which  it  refers. 

§  167.  Law  in  Relation  to  Time.  Retroactivity .  The 
discussion  of  the  relation  between  law  and  time  brings 
up  the  grave  question  of  retroactivity.  Does  the  law 
govern  only  the  future  or  does  it  also  regard  the  past? 
The  most  philosophical  doctrine  on  this  subject  is  that 
of  Lassalle  in  his  work  "System  der  Erworbenen  Rechts," 
clarified  and  amplified  among  the  Italians  by  Gabba 
in  his  "Teoria  della  Retroattivita  delle  Leggi."  Lassalle 
teaches  that  a  new  law  cannot  affect  acquired  rights 
because  they  are  derived  from  acts  fulfilled  under  the 
protection  of  the  old  laws.  To  admit  retroactivity  in 
such  a  case  would  be  to  offend  the  principle  of  respect  due 
human  individual  liberty.  Now  this  conception  was 
developed,  long  before  Lassalle,  by  Trendelenburg,  who 
wrote  that  formal  or  recognized  law  is  the  basis  of  liberty, 
and  that  acquired  rights  are  under  its  protection.  The 
formal  law  of  the  statutes  and  the  acquired  rights  of 
individuals  sustain  and  help  one  another.  But  a  new 
law,  Lassalle  goes  on,  is  retroactive  in  regard  to  the 
individual  independent  of  his  acts,  if  it  looks  to  the 
person  himself  or  his  qualities.  This  is  true  whether 
the  qualities  depend  immediately  on  natural  law  or  on 
positive  and  social  law,  or  are  contemplated  by  the  new 
law  in  a  correct  or  incorrect  manner.  For  example, 
a  law  doing  away  with  slavery  and  vassalage  is  applicable 
to  the  past  because  it  regards  the  personality  of  man 
denied  by  such  institutions.  There  can  be  no  true  ac- 
quired right  in  a  faculty  given  by  positive  law  in  open 
contradiction  to  natural  law.  Gabba  accepts  the  doc- 
trine of  Lassalle,  but  .enlarges  and  amends  it  until  it  has 
a  marked  individualistic  character.  According  to  the 
Italian,  the  acquired  rights  comprehend  any  permissible 


LAW  IN  RELATION  TO  TIME  315 

act  capable  of  financial  valuation,  exercised  over  an 
object  which  is  capable  of  becoming  part  of  the  estate. 
Lassalle  saw  only  the  permissibility  of  the  act  and 
omitted  the  other  requirements.  But  it  is  not  tru£ 
that  an  acquired  right  arises  exclusively  from  the  act  and 
will  of  an  individual  person,  because  it  can  also  arise 
directly  or  indirectly  from  the  law.  In  Gabba's  mind, 
every  right  is  an  acquired  right,  which  is  the  resultant 
of  an  act,  legal  when  done,  although  the  occasion  giving 
it  value  has  not  occurred  before  the  passing  of  the  new 
law,  provided  that  the  right  by  the  terms  of  law  of  the 
time  when  it  was  done  could  have  a  financial  value. 
Acquired  acts  are  of  three  kinds.  The  first  are  con- 
sequences of  the  will  of  man,  which  intends  to  create 
a  given  right  by  the  acquisition  of  a  "res  nullius"  or  by 
agreement  with  another.  Acts  of  the  second  class 
are  also  voluntary  but  do  not  contain  the  proposition 
of  originating  a  right,  but  if  given  by  the  law,  the  right 
arrives  "ope  legis"  as  in  the  case  of  crimes,  or  even  more 
clearly  in  "obligationes  ex  delicto."  The  actsof  the  third 
class  are  involuntary  or  fortuitous ;  from  them  the  right 
arises  "ope  legis,"  as  in  alluvion.  If  we  admit  these  rea- 
sonable modifications  of  Gabba  because  they  are  based  on 
a  more  detailed  examination  of  the  subject,  the  doctrine 
of  Lassalle  and  its  amendments  can  be  epitomized  as 
follows:  A  law  is  not  retroactive  if  it  affects  the  volun- 
tary or  involuntary  acts  of  an  individual  or  facts  done 
which  could  give  or  create  an  acquired  right  according  to 
the  law  of  the  date  in  which  they  are  done.  The  reason 
of  the  non-retroactivity,.in  this  case,  lies  in  the  prin- 
ciple of  cause  and  effect;  the  acts  and  facts  indicated 
should  be  governed  by  the  law  of  the  time  in  which  they 
are  begun  or  completed.  Here  the  cause  is  not  the 
time,  but  the  control  of  the  law  by  which  these  facts 
and  acts  are  governed.  If  it  is  a  question  of  person- 


316  RATIONAL  AND  POSITIVE  LAW 

ality,  of  a  new  and  higher  conception  of  man  and  his 
substantial  attributes,  the  new  law  is  retroactive,  because 
an  individual  cannot  hinder  the  ascending  course  of 
the  law  by  his  will  or  objection.  A  new  and  more 
rational  declaration  of  the  idea  of  man  and  his  facul- 
ties must  be  able  to  change  the  social  state  and  attain 
full  realization.  Two  juristic  conceptions  of  the  per- 
son and  his  fundamental  powers  in  the  same  society  and 
time  are  absurd  and  contradictory. 

§  168.  False  Rules  of  Retroactivity.  The  other  doc- 
trines concerning  retroactivity  have  a  scientific  and 
speculative  value  inferior  to  Lassalle's,  as  Gabba  shows. 
There  are  some  that  make  retroactivity  depend  upon 
the  words  of  the  legislature,  and  in  doubtful  cases  the 
presumption  is  in  favor  of  retroactivity.  This  is  no 
rational  criterion,  but  a  canon  of  construction.  We 
are  concerned  with  the  principle  which  the  legislature 
should  follow  in  extending  the  action  of  a  new  law  to  the 
past  or  in  limiting  it  to  the  future.  The  maxim  of  the 
applicability  of  a  new  law,  because  it  is  better,  to  the  con- 
sequence of  prior  acts  should  at  least  be  limited  in  respect 
to  acquired  rights.  Many  believe  that  a  law  should  be 
retroactive  if  of  a  public  order  or  prohibitive  nature 
without  reflecting  that  it  is  not  possible  to  establish 
rigorously  the  boundaries  of  public  order  and  of  social 
interest  in  contradistinction  to  private  interest.  This 
criterion  is  not  definite  because  the  respect  of  acquired 
rights  is  a  matter  of  social  interest  and  public  order. 
Neither  is  exact,  because  a  new  criminal  law,  which 
is  of  a  public  nature,  is  not  always  retroactive.  It  is 
clear  that  this  conception  of  a  law  of  public  nature  enters 
in  the  more  complex  idea  of  retroactivity,  which  corres- 
ponds to  the  demands  of  society,  as  the  idea  of  private 
order  is  connected  with  that  of  acquired  rights  and  non- 
retroactivity,  which  satisfies  the  demands  of  the  indi- 


RETROACTIVE  CRIMINAL  LAW          317 

vidual.  Science,  however,  seeks  a  higher  principle,  a 
supreme  and  ultimate  reason  that  is  definite  and  fixed. 
The  writers  who  say  that  prohibitive  laws  are  retro- 
active because  the  prohibitive  character  brings  with 
it  necessarily  retroactivity,  and  thence  deduce  a  rule, 
are  not  far  from  the  conception  of  public  order.  Savigny 
distinguished  laws  that  have  to  do  with  the  acquisitions 
of  rights  or  the  allowance  of  a  faculty  to  an  individual 
from  laws  which  refer  to  the  existence  or  non-existence 
of  rights  and  the  recognition  of  an  institute.  New  laws 
of  the  first  class  cannot  destroy  acquired  rights,  as  the 
new  law  affects  capacity  of  action ;  those  of  the  second 
class  are  retroactive,  for  example,  a  law  abolishing  feuds. 
It  has  been  pointed  out  that  this  distinction  rests  on  an 
abstract  and  unstable  category  entering  into  both  camps, 
because  the  same  law  looked  upon  from  the  point  of 
view  of  the  individual  appears  as  a  law  of  acquisition, 
and  from  the  point  of  view  of  the  object  is  the  law 
governing  existence  of  a  right.  The  existence  or  non- 
existence  of  a  right,  the  legal  recognition  of  an  institu- 
tion is  very  much  similar  to  the  public  order  and  the 
social  interest  of  which  we  have  just  spoken. 

§  169.  Retroactive  Criminal  Law.  Compensation. 
Law  has  nothing  to  do  with  simple  hopes  or  expecta- 
tion when  the  title  has  not  become  irrevocable.  Nor  has 
it  to  do  with  mere  powers  granted  by  the  statutes,  until 
the  fact  on  which  they  are  based  has  happened.  If  this 
fact  has  happened  there  is  a  true  acquired  right,  and  the 
new  law  does  not  affect  it.  In  criminal  law  it  is  not  accu- 
rate to  speak  of  the  acquired  right  of  a  criminal.  What 
belongs  to  the  criminal  can  never  be  of  financial  value  to 
him.  In  general,  it  can  only  be  allowed  as  a  "suum"  of 
the  criminal  without  acquiring  the  significance  of  a  "jus 
qusesilum."  Nevertheless,  the  maxim  that  the  most  len- 
ient laws  are  those  which  are  applied  whether  they  are  an- 


318          RATIONAL  AND  POSITIVE  LAW 

terior  or  subsequent  has  an  equitable  value.  Equity  has 
constant  control  in  the  field  of  transitory  law,  in  which  it 
is  well  to  examine  the  excuses  of  the  contending  parties, 
those  of  the  individual  with  his  acquired  right,  and  of 
society  with  its  reasons  of  general  well-being  and  prog- 
ress. The  claim  of  society  fundamentally  is  not  the 
need  of  the  majority  or  of  those  who  profit  from  the 
change  of  law.  It  is  equitable,  Trendelenburg  writes, 
that  all  who  demand  the  change  and  are  benefited  by  it 
should  give  some  indemnity  for  the  damage  inflicted  upon 
the  victims  of  the  law.  If  it  is  a  question  of  simple  per- 
sonal rights,  for  example,  the  suppression  of  a  class  privi- 
lege or  patronage,  there  is  no  room  for  damages,  because 
to  give  gold  for  honor  is  dishonorable ;  but  if  it  is  a  ques- 
tion of  property,  a  change  of  law  should  not  take 
away  without  labor  and  without  a  certain  contribution 
on  its  part  from  him  who  has  gained  something.  In 
other  words  there  should  not  be  an  acquisition.  The 
English  government  is  most  praiseworthy  in  that,  in  abol- 
ishing slavery  in  the  Colonies,  it  gave  an  indemnity  to 
the  slave-holders  and  obliged  the  freed  negroes  to  work 
for  a  certain  time  as  servants  of  their  old  masters. 


BOOK  II 

PRIVATE   LAW 


CHAPTER  I 
THE  INDIVIDUAL  AND  HIS  RIGHTS 

THE  PERSON.  —  ESSENTIAL  OR  INHERENT  RIGHTS  AND  ACCI- 
DENTAL OR  ACQUIRED  RIGHTS.  —  THE  PRINCIPLE  OF  RIGHTS.— 
THE  RIGHT  TO  PHYSICAL  AND  MORAL  LIFE.— THE  RIGHT 
TO  FREEDOM.  —  THE  RIGHT  TO  EQUALITY,  SOCIETY,  AND 
HEALTH.— THE  RIGHT  TO  WORK. 

§  170.  Juristic  Man  the  Subject  of  Rights  and  Duties. 
The  personal  unit  is  the  subject  of  rights  and  duties 
in  the  strict  juristic  sense.  The  personal  unit  is  man  in 
his  quality  of  an  organism  endowed  with  sense,  cogni- 
tion, and  free  will.  If  his  sense  is  controlled  by  definite 
and  transfigured  knowledge,  if  his  will  is  practical 
reason,  it  can  be  truly  said:  "Persona  est,  cujus  aliqua 
voluntas  est."  But  man,  the  simple  potentiality  of  in- 
dividual will,  or  the  autonomous  determination  of  the 
ego,  is  not  the  actual  subject  of  rights  and  duties,  for 
though  each  individual  is  part  of  man  in  the  universal, 
yet  he  differs  from  him  in  the  act  of  cognition,  a  precept 
of  law,  because  the  individual  juristic  unit  begins  to  have 
his  own  life  and  functions.  Yet  abstract  and  concrete 
man  are  of  the  same  essence;  the  former  has  the  power 
to  effect  acts.  And  action  is  necessary;  it  is  the  second 
element  in  man,  the  individual  subject  of  rights  and 
duties.  It  is  a  kind  of  investiture,  not  a  part  of  person- 
ality, but  a  civil  consecration. 


320  PRIVATE  LAW 

§  171.  Society  a  Necessity.  This  investiture  is 
easily  given  recognition,  when  one  sees  that  the  in- 
dividual becomes  the  true  ethical  subject  and  unit 
in  society,  and  that  without  society  there  can  be 
only  the  beginning  and  elements  of  an  ethical  being. 
This  being  develops  into  man,  acquiring  freedom  from 
the  dominion  of  the  senses  through  knowledge  and  edu- 
cation. The  presence  of  language,  education,  and  dis- 
cipline presupposes  a  society.  On  this  hypothesis  is 
based  Aristotle's  theory  of  the  ultimate  destiny  of  man, 
of  his  autarchy  and  the  relation  between  ethics  and 
politics;  from  this  doctrine  the  modern  philosophers 
have  not  departed.  Vico,  in  "De  Uno  Universi  Juris 
Principioet  Fine  Uno,"  defines  character  or  "auctoritas" 
as  the  principal  resultant  of  the  interpenetration  of 
power,  freedom,  and  control.  If  power,  he  says, 
connotes  the  wise  distribution  of  property,  and  freedom 
consists  of  its  moderate  use,  and  the  control  is  the 
strength  of  mind  which  governs  power,  one  cannot  doubt 
that  the  "auctoritas"  presupposes  civilization,  because 
wisdom,  moderation,  and  strength  do  not  manifest  them- 
selves without  language,  culture,  and  education.  Kant 
holds  that  the  State  is  contractual,  but  asserts  that  the 
individual  acquires  in  it  freedom  and  independence. 
Hegel  believes  that  the  community  is  the  ethical  sub- 
stance or  spirit  and  that  the  individual  is  but  a  simple 
manifestation  or  form  of  that  substance,  although  man  is 
an  end  for  himself  which  develops  and  advances  within 
it.  From  his  point  of  view,  the  community  and  the 
individual  are  reciprocal  cause  and  effect,  because  the 
community  is  the  force  which  holds  the  units  together, 
keeping  them  to  their  original  character,  while  the 
individuals  by  their  separate  acts  try  to  change.  Tren- 
delenburg  says  that  an  individual  without  the  ethical 
whole  or  society  is  an  impossible  conception,  and  that 


TWO  PREREQUISITES  321 

the  idea  of  man  is  always  that  of  a  community  inclu- 
sive of  the  individual.  In  psychology,  as  it  is  con- 
ceived by  Comte,  statics  concern  biology,  dynamics 
the  mind,  and  are  the  source  of  historical  development, 
but  not  of  biological  change.  It  is  evident  that  the 
individual  in  Comte's  mind  becomes  an  efficient  unit 
only  because  he  is  a  factor  in  an  entirety  which  develops 
by  historical  steps. 

§  172.  Two  Prerequisites:  their  Appearance  in  History. 
The  juristic  person  is  fundamentally  the  same  ego  as 
the  human  unit  to  the  extent  that  he  takes  part  in  life 
or  in  the  sphere  of  external  relations.  But  there  are 
two  prerequisites  essential  to  his  existence,  will  and  social 
consciousness.  Let  us  begin  our  consideration  of  the 
philosophy  of  law  from  the  time  when  these  two  req- 
uisites first  appear.  As  early  as  the  period  of  the 
family  communities,  and  in  the  ages  of  the  "gens"  or 
village  communities,  that  is,  before  the  birth  of  civili- 
zation, we  find  these  two  elements  more  or  less  imper- 
fectly portrayed.  The  juristic  person,  therefore,  does 
not  necessarily  exist  only  in  civilization.  In  a  state  of 
civilization  his  development  is  greater  and  more  complex, 
and  he  finds  conditions  better  suited  to  his  life  and 
advancement,  but  he  had  his  place  in  the  antecedent 
stages.  When  we  say  that  he  cannot  exist  except  in 
civil  community,  we  by  no  means  say  that  he  had  no 
existence  in  the  earlier  state  of  the  social  aggregation, 
but  merely  assert  that  he  cannot  be  efficient  without  a 
society,  though  it  be  primitive,  and  that  only  in  histori- 
cal times  has  he  developed  his  efficiency  to  the  full. 
The  definition,  "Persona  est  homo  statu  civili  praeditus," 
does  not  mean  that  man's  advance  depends  upon  a  civil 
state  or  civilization,  but  means  that  there  is  no  man 
without  a  relation  to  rights,  which  the  law  and  State 
recognize.  This  possession  of  rights  is  civil  capacity. 


322  PRIVATE  LAW 

It  is  quite  true  that  the  principle  of  the  juristic  person  is 
manifest  in  different  ways  varying  with  the  organic 
structure  of  society,  its  sentiments,  traditions,  and 
beliefs,  and  with  the  flora  and  fauna;  but  in  all  its 
different  manifestations,  the  two  elements,  will  and  the 
civil  investiture,  which  we  mentioned,1  are  always 
present.  These  elements  are  two  formal  conditions  of 
man  whatever  his  particular  or  concrete  character. 

§  173.  Absolute  Rights  and  Relative  Duties.  The 
individual  has  rights  when  considered  absolutely,  or 
as  an  end,  and  duties  when  considered  relatively  or 
as  a  factor  in  the  whole  or  ethical  organism,  of  which 
Trendelenburg  speaks.  The  individual  is  medial,  not 
because  he  is  the  equivalent  of  an  object,  but  because  he 
is  a  force  and  conscious  factor  of  humanity  or  the  ethical 
whole,  to  which  he  should  be  subordinate.  This  idea 
apparently  is  in  Rosmini's  mind  when  he  speaks  of 
generation  as  the  origin  of  paternal  rights  and  says  that 
the  son  is  medial,  in  an  ethical  or  personal  sense,  to  the 
pleasure  and  happiness  which  his  parents  can  obtain 
through  him,  and  that  he  is  ultimate  or  absolute  con- 
sidered from  his  own  point  of  view.  The  son  in  his  relative 
quality  has  duties  and  in  his  ultimate  quality  has  rights. 
But  the  individual  is  an  end  for  himself;  and  we  must 
consider  him  as  such  when  he  desires  to  be  free  in  the 
fulfillment  of  his  duty  or  in  the  enjoyment  of  proper  and 
expedient,  if  not  obligatory,  actions.  He  is  medial  when 
he  must  do  or  not  do  something,  because  under  those  con- 
ditions he  is  the  instrument  for  the  realization  of  ethical 
principles  and  the  idea  of  humanity.  We  must  observe 
that  the  ethical  organ  does  not  live  merely  the  life  of  the 
whole,  but  has  its  own  life  and  being  and  its  own  char- 
acter differing  in  this  from  a  simple  natural  organ. 
In  natural  organisms  of  a  high  grade,  the  part  has  its 

lCf.  §  170  ante. 


INHERENT  AND  ACQUIRED  RIGHTS      323 

own  life  and  a  certain  independence.  But  the  life  of 
the  part  is  quite  inferior  to  that  of  man  in  respect  to  the 
ethical  whole.  The  individual  is  a  unit,  which  the  part 
of  the  natural  organism  is  not. 

§  174.  Inherent  and  Acquired  Rights.  The  rights  of 
the  individual  are  inherent  or  essential  and  acquired 
or  accidental.  The  essential  or  inherent  rights  are 
not  the  powers  derived  from  the  "antecedents  of 
nature"  of  the  Stoics  or  primary  rights  intended 
merely  for  the  conservation  or  propagation  of  the  race, 
although  they  are  founded  immediately  upon  the  com- 
mon and  abstract  nature  of  man,  conceived  in  the 
integrity  of  its  essential  parts.  The  acquired  rights 
have  their  origin  in  the  concrete  and  individual  nature 
of  man,  not  regarded  exclusively  in  relation  to  the  intel- 
lectual and  moral  elements ;  that  is,  not  under  the  aspect 
of  the  "consequents  of  nature"  or  secondary  rights. 
The  essential  rights  express  the  true,  the  acquired  show 
the  certain;  the  first  are  elementary  forces,  the  second 
represent  development  and  realization.  Rosmini  writes 
that  there  is  one  primal  and  essential  right,  that  of  the 
person,  and  that  then  there  are  rights  growing  out  of  its 
exercise  in  a  mediate  or  immediate  manner.  The  con- 
nection between  the  activities  and  the  personal  essence 
was  either  given  to  man  by  nature  with  his  first  exist- 
ence or  is  formed  by  the  exercise  of  his  activities.  If 
united  and  proper  to  the  personal  essence  (through  the 
nature  of  man) ,  they  constitute  the  natural  and  inherent 
rights;  but  if  appropriate  to  the  exercise  of  his  activi- 
ties and  his  natural  rights,  they  are  called  acquired. 
We  cannot  have  an  acquired  right  without  a  natural 
right,  and  in  general  we  cannot  acquire  a  new  right 
without  a  precedent  right.  To  acquire  a  certain  activ- 
ity it  is  necessary  to  act,  and  in  order  to  act  one  must 
have  the  necessary  power,  and  therefore  one  must  have 


324  PRIVATE  LAW 

the  right  to  that  power  to  rely  upon  in  acquiring  the 
new  activity  or  right.  Thus  the  sphere  of  rights  can  be 
extended  as  far  as  the  activities  can  be  developed. 
In  other  words  you  can  acquire  the  rights  of  which  you 
have  the  germs. 

§  175.  The  More  Development,  the  Greater  Rights. 
A  man's  rights  multiply  as  his  opportunities  and 
capacities  develop.  The  more  perfect  the  man,  the 
more  progressive  the  community;  the  more  civilized 
the  nation,  the  richer  he  is  in  rights.  As  time  goes  on, 
the  inherent  rights  assume  through  the  realization  of 
acquired  rights  new  forms  and  manifestations.  These, 
through  evolution,  grow  and  separate  more  and  more, 
and  have  more  modifications  and  enter  into  a  greater 
number  of  correlations,  so  that  the  inherent  rights  no 
longer  appear  as  capacities  given  and  immutable,  but 
as  activities  or  powers  of  human  nature  which  lie  more 
in  the  realm  of  action  than  existence,  marked  by  the 
most  detailed  and  energetic  unity  and  the  most  ex- 
tended and  indefinite  variety. 

§176.  Qualitative  and  Quantitative  Distinction  Between 
the  Capacities  of  the  Spirit.  These  activities,  being 
capacities  of  the  spirit,  are  not  subject  to  mere 
qualitative  or  quantitative  distinction  in  the  indi- 
vidual. In  qualitative  difference  there  is  not  the 
whole  entity  but  something  of  the  entity  which 
is  divided  and  distributed  in  different  ways,  and 
therefore  each  difference  is  a  factoral  part,  and  is 
circumscribed.  But  since  the  spirit  is  not  divisible,  but 
a  unit  (being  wholly  a  complex  capacity) ,  so  the  person 
is  a  unit  and  complete  in  all  his  natural  and  inherent 
rights.  Hence  the  conception  of  the  capacity  and 
inherent  rights  as  subject  to  qualitative  distinction  is 
opposed  to  the  theory  of  the  unity  of  the  person  and 
spirit.  Neither  can  these  rights  be  measured  quantita- 


THE  PERSON  AS  THE  SOURCE  325 

lively,  because  between  them  there  is  not  merely  the 
relation  of  more  or  less,  and  because  they  do  not  exist 
in  terms  foreign  to  the  person.  The  right  to  life,  for 
example,  does  not  differ  from  the  right  to  truth  or 
freedom  by  a  sign  of  addition  or  multiplication,  and 
cannot  exist  without  its  subject.  We  know  that  quan- 
tity is  a  foreign  measure  of  determination  because  one 
can  augment  or  diminish  without  a  qualitative  differ- 
ence. Whence  it  follows  that  the  theory  that  capacities 
and  inherent  rights  are  subject  to  quantitative  distinc- 
tions, even  if  it  does  not  deny  the  unity  of  spirit  and 
man,  does  not  look  towards  his  development.  In  con- 
clusion, inherent  rights  are  capacities  of  the  spirit; 
different  forms,  therefore,  of  an  ample  and  potent  en- 
ergy in  constant  progressive  motion, interpenetrating  and 
resolving  one  in  another,  the  lower  in  the  higher.  This 
energy,  which  is  seen  in  the  richest  development  of  its 
methods,  attitudes,  and  forces,  is  mind  in  psychology, 
is  the  person  in  ethics. 

§  177.  The  Person  as  the  Source  and  Origin  of  Rights. 
The  source  of  the  logical  derivation  of  essential  or 
inherent  rights  can  only  be  in  the  person,  all  of  whose 
rights  are  activities  or  powers.  But  we  must  under- 
stand that  we  have  not  used  the  word  person  in  an 
integral  sense,  but  meaning  rather  the  abstract  or 
ethical  man,  of  which  he  is  a  part.  For  it  is  not 
logical  to  speak  of  absolute  rights  without  considering 
relative  duties.  Trendelenburg  has  correctly  said  that 
inherent  rights  represent  a  series  of  postulates,  guar- 
anteeing to  the  individual  conditions  suited  to  his 
development.  Whoever  invokes  these  inherent  rights 
should  first  recognize  the  ethical  whole  in  which  alone 
they  are  possible  and  efficient.  The  idea  of  these  rights 
is  inseparable  from  the  end,  which  both  the  individual 
and  the  community  should  strive  to  attain.  This  end 


326  PRIVATE  LAW 

is  the  full  realization  of  the  human  essence.  But  the 
person  so  conceived,  more  than  the  rights  themselves, 
should  be  considered  as  the  principle  and  form  of  in- 
herent rights.  And  when  we  speak  incorrectly  of  the 
rights  of  personality  we  do  not  mean  special  and  dif- 
ferent rights  but  the  common  centre  of  rights,  the 
human  power  itself.  The  criterion  or  general  character 
of  a  right,  which  distinguishes  it  from  the  activity 
subject  to  it,  is,  according  to  Rosmini,  property  or 
ownership  in  its  broadest  sense,  indicating  what  is 
connected  with  a  man  physico-morally,  or  acquired  by 
him;  that  is,  brought  within  his  ownership.  In  this 
meaning,  property  makes  a  sphere  around  the  individual, 
whose  centre  is  the  individual,  in  which  sphere  no  one 
can  intervene  because  no  one  can  deprive  another  of 
what  is  his. 

§  178.  The  Development  of  Rights.  And  to  show  the 
nature  of  the  chief  inherent  rights,  let  us  follow  the 
Italian  philosophers,  unsurpassed  in  this  respect.  Every 
power  is  an  activity,  ungrown  and  in  embryo,  but  hav- 
ing a  tendency  to  open  and  fulfill  its  nature  in  acts 
suitable  thereto.  At  first  feeling  tends  to  the  repetition 
of  known  sensations,  then  it  makes  for  the  attainment 
of  known  results,  and  tends  to  happiness.  Foresight 
leads  to  the  discovery  of  truth.  Will  makes  for  the 
love  of  known  pleasures,  and  tends  to  virtue.  These 
three  tendencies  to  happiness,  truth,  and  virtue,  which 
are  one  with  the  powers  of  sensibility,  cognitions,  and 
will,  are  as  well  inherent  rights  as  the  powers  from 
which  they  grow.  If  the  capacities  are  intermingled  and 
resolved  one  in  another  according  to  the  laws  of  develop- 
ment and  evolution,  and  if  fulfillment  presupposes  truth 
and  happiness,  it  is  clear  that  the  inherent  right  to  ful- 
fillment brings  with  it  truth  and  happiness;  and  that 
the  right  to  truth  comprehends  that  to  happiness.  With- 


INHERENT  RIGHTS  327 

out  confusing  the  inherent  rights  with  the  "antecedents 
of  nature,"  but  extending  them  also  to  the  "consequents," 
we  can  agree  with  Vico  that  rights,  when  referring  to  the 
"consequents,"  give  the  regulations,  which  show  the 
certain,  and  that  the  necessity  creates  the  "antecedents." 
We  must,  however,  always  keep  in  mind  that  in  dealing 
with  the  "antecedents"  we  are  dealing  with  the  lower 
side  of  human  nature,  and  that  the  "consequents"  show 
the  rational  or  voluntary  part. 

§  179.  Subsidiary  Inherent  Rights.  The  individual 
ought  to  realize  his  ideas,  and  accomplish  his  ends  by 
the  attainment  of  happiness,  truth,  and  virtue,  and  there- 
fore he  is  the  subject  of  other  inherent  rights,  that  is,  of 
rights  to  physical  and  moral  life,  to  freedom,  equality, 
social  existence,  to  assistance  and  work.  Ahrens  de- 
serves the  credit  of  having  made  a  comprehensive 
study  of  these  rights. 

§  180.  The  Right  to  Life.  Without  doubt  the  first 
in  importance  among  them  is  the  right  to  life,  which 
begins  with  man,  "in  fieri,"  with  the  embryo  or  unborn 
child.  For  either  of  these  is  a  potential  person,  and 
as  such  is  inviolable  and  has  rights.  And  yet  the  rights 
of  an  unborn  child  are  not  fully  recognized  by  some 
codes;  for  example,  the  French  and  Italian,  which 
base  the  right  of  inheritance  upon  birth.  Such  a  con- 
dition is  not  just  because  the  capacity  of  rights  should 
depend  upon  existence  and  not  upon  the  possibility  of 
life.  Man  lives  regardless  of  what  his  prospect  of  con- 
tinued life  is,  and  while  man  lives  his  rights  should  not 
be  lacking.  Besides,  this  condition  has  given  rise  to  much 
doubt  in  the  minds  of  the  learned  and,  as  Savigny  points 
out,  is  contrary  to  criminal  law,  which  protects  the  life  of 
an  unborn  child.  In  practice,  many  inconveniences 
occasioned  by  this  erroneous  principle  are  avoided  by 
the  presumption  that  a  child  "en  ventre  sa  mere"  is  alive. 


328  PRIVATE  LAW 

§  181.  The  Right  to  Life  Does  not  Comprehend  a  Right 
to  Suicide.  Suicide  is  a  crime  because  self-preservation 
is  a  duty  of  man.  This  duty  is  both  moral  and  juristic. 
There  is  no  controversy  on  the  question  of  the  moral 
duty  because  there  can  be  no  condition  of  life  to  which 
the  idea  of  happiness  is  not  attached.  Those  philosophers 
err  who  recognize  a  possibility  of  human  existence  irre- 
concilable with  ethics,  because  the  deepest  grief  and 
greatest  disgrace  cannot  justify  a  man  in  the  disregard 
of  his  duties  and  exempt  him  from  the  attainment  of 
his  proper  ends.  The  knowledge  of  duty  fulfilled  is  a 
comfort  in  suffering  and  trouble  and  gives  the  despairing 
man  a  feeling  of  tranquility  and  courage.  There  still  is, 
however,  the  juristic  duty  that  a  man,  as  far  as  his  acts 
are  concerned  and  in  his  external  relations,  shall  act  in 
concordance  with  the  community  and  other  men  in 
matters  of  general  concern.  Whence  it  follows,  that 
the  community  which,  together  with  law,  has  the  duty 
of  guaranteeing  his  actions,  can  punish  whomsoever 
wishes  to  destroy  a  man,  even  if  that  man  be  himself. 
The  right  to  life  is  as  inalienable  as  human  nature, 
which  cannot  develop  except  through  life,  which  is  the 
condition  of  the  existence  of  all  rights  and  duties.  Neither 
can  we  say  that  it  is  inalienable  only  as  an  essential 
of  social  existence,  because  an  inherent  right  is  per  se 
essential  as  a  part  of  personality.  The  inviolability  and 
inalienability  of  such  a  right  are  not  consequences  of 
mutable  social  necessity  or  personal  interest  in  the  State, 
but  are  concomitant  with  the  incarnation  of  the  human 
principle  in  the  individual.  The  teaching  which  we 
combat  is  only  the  remnant  of  the  Greek  theory  about 
the  relation  of  the  individual  to  the  State;  that  man 
is  but  a  fraction  of  an  all-absorbing  unit.  This  theory 
rests  on  the  power  of  the  natural  organism  over  its 
parts  and  not  on  the  rights  of  the  ethical  organism  or 


RELATION  OF  SUICIDE  AND  LAW        329 

whole  limited  by  the  character  of  its  component  parts. 
It  is  true  that  man  has  no  juristic  relation  with  himself; 
but  in  the  above  instance,  the  relation  lies  between  the 
individual  and  the  ethical  whole  or  community,  in 
which  relation  there  develops  a  duty  of  the  person  to 
realize  the  ideal  of  man  in  matters  relating  to  acts  which 
affect  either  his  fellows  or  physical  objects  subject 
to  their  possession.  Not  only  every  man,  but  also  his 
children,  wife,  parents,  brothers,  and  other  men  have 
a  right  to  his  life,  as  we  have  said.1  The  community, 
therefore,  has  also  a  right  to  preservation  of  his  life.  The 
analogy  given  by  Beccaria,  between  the  right  of  self-de- 
struction and  emigration,  is  not  well  taken,  because  the 
former  destroys  the  man  while  the  latter  only  transfers 
him  from  one  place  to  another.  One's  native  land  is  not 
a  prison,  and  the  State  allows  citizens  to  withdraw;  but 
the  State  cannot  permit  a  man  to  perish.  This  duty  is 
not  a  derivative  of  national  or  political  relations,  but  of 
universal  human  existence. 

§  182.  The  Philosophical  Relation  of  Suicide  and  Law. 
No  inference  that  criminality  is  lacking  can  be  drawn 
from  the  failure  to  punish  a  suicide.  He  is  not  pun- 
ished because  social  justice  cannot  take  the  culprit.  It 
is  neither  human  nor  civilized  to  insult  his  corpse  or  his 
memory,  nor  is  it  just  to  inflict  the  penalty  upon  his 
descendants  and  heirs  by  a  confiscation  of  his  estate.  The 
State  can,  however,  punish  the  tentative  suicide  (because 
the  above  reasoning  does  not  apply),  if  it  thinks  it  wise 
to  place  a  penalty  on  the  attempt  and  not  to  treat  it 
with  absolute  contempt.  For  a  statute  is  not  sufficient 
to  stop  the  hand  of  him  who  no  longer  feels  the  natural 
instinct  of  self-preservation,  but  will  only  make  him 
take  all  necessary  precautions  that  his  hand  shall 
not  fail.  But  if  civilized  society  is  in  a  truly  pro- 

1  Cf.  §§  179,  180   ante. 


330  PRIVATE  LAW 

gressive  movement,  and  happiness  in  life  is  attainable 
for  the  majority;  if  the  State  makes  life  easier  by 
the  aid  of  well -developed,  educational  discipline,  and 
law  is  not  considered  as  a  tyrannical  and  foreign 
master,  legal  prohibition,  with  such  factors  as  these, 
will  accomplish  the  best  results.  With  the  moral  ed- 
ucation of  the  individual  extended  and  invigorated, 
the  causes  of  this  sad  act  will  diminish ;  and  the  knowl- 
edge that  the  meditated  act  is  criminal  and  dishonorable 
will  act  as  a  sufficient  restraint  over  many  to  whose 
mind  comes  the  thought  of  leaving  this  world  on 
account  of  some  sorrow  suffered  or  feared.  While  these 
conditions  are  unattained  and  causes  for  suicide  continue 
to  increase,  there  will  be  some  men  who  have  not  sufficient 
physical  bravery  to  take  their  own  life  or  undergo  the 
penalty  in  case  of  a  failure,  and  others  who  will  hesitate, 
because  of  the  disgrace  attached  to  the  act.  But  it 
is  clear  that  in  both  these  cases  the  voice  of  instinct  is 
not  spent,  and  the  suicidal  intent  is  badly  formed  and 
therefore  can  be  rendered  nugatory  by  a  statute.  Fur- 
thermore, it  is  a  logical  deduction  from  the  above  rule 
that  it  is  criminal  to  help  the  consummation  of  the 
suicidal  act.  The  maxim,  "Volenti  non  fit  injuria," 
is  only  applicable  to  alienable  private  rights  and  does 
not  apply  to  those  whose  disregard,  as  Berner  says  in 
"Lehrbuch  der  Deutsche  Strafrechts,"  violates  a  duty. 
The  power  to  renounce  one's  rights  is  limited  by  the 
rights  of  others. 

§  183.  The  Right  to  Freedom  from  Bodily  Harm;  and 
Self-Defense.  The  inherent  right  to  physical  life  com- 
prehends the  right  to  safety  and  health,  and  to  self- 
defense.  Mere  life  is  not  all:  one  must  live  in  free 
enjoyment  of  the  qualities  and  the  organs  which  nature 
has  so  generously  bestowed  on  man  in  order  that  he 
may  attain  his  ultimate  end.  This  is  admittedly  true. 


THE  RIGHT  TO  FREEDOM  331 

No  one  has  a  right  to  self-mutilation.  "Nemomemb- 
rorum  suorum  dominus  esse  videtur"  was  prescribed 
by  the  earliest  law.  .  Whoever  mutilates  and  destroys 
or  otherwise  affects  another's  body  or  health,  even 
though  the  person  injured  has  given  his  consent,  is 
guilty  of  an  offense  against  the  human  personality  and 
law.  The  innkeeper  who  encourages  drunkenness  de- 
serves punishment  for  injuring  the  health  of  his  fellow- 
beings.  On  the  same  ground,  statutes  have  been 
passed  limiting  the  working  hours  of  women  and  chil- 
dren. The  right  to  self-defense  allows  recourse  to 
force,  when  there  is  no  opportunity  to  invoke  the 
arm  of  social  justice  for  the  protection  of  one's  own 
rights  or  those  of  another  threatened  with  an  unjust 
attack.  This  is  the  private  protection  derived  from 
"auctoritas  monastica,"  of  which  Vico  speaks.  It  is, 
therefore,  descended  from  the  solitary  man  or  from 
the  State,  in  which  he  could  not  invoke  the  protection 
of  the  law  to  repel  an  unjust  attack.  Vico  thinks,  on 
this  account,  that  man  was  originally  a  solitary  being, 
and  that  he  can  kill  an  unjust  assailant  in  self-defense 
because  justice  is  on  his  side  and  against  the  aggressor. 
Self-defense  is  inherent  in  every  right,  allowing  the  use 
of  power  in  the  exercise  of  it.  Rosmini  goes  further 
and  says  that  this  use  of  force  is  a  function  of  every  right. 
This  doctrine  recognizes  that  the  human  personality  is  an 
inviolable  centre  of  rights  and  that  man  can  make  full 
use  of  force  in  their  exercise.  Since  man  is  furnished 
with  intellectual  and  physical  powers,  he  has  the  right 
to  use  them  in  the  maintenance  of  his  rights.  The  harm, 
which  necessarily  is  inflicted  upon  the  assailant,  is  justi- 
fied by  the  general  rule  of  justice,  that  a  voluntary  wrong- 
doer must  bear  the  penalty  inflicted  by  the  wronged 
man,  who  becomes  the  instrument  of  justice.  There  are 
two  prerequisites  to  the  exercise  of  the  right  of  self- 


332  PRIVATE  LAW 

defense,  —  the  injustice  of  the  attack  and  the  presence  of 
danger.  The  injustice  of  the  attack  must  be  considered 
by  itself  with  due  regard  to  the  character  of  the  assailant 
who,  for  example,  may  be  mad,  but  his  lack  of  reason 
does  not  take  away  the  right  of  self-defense.  The 
danger  must  be  real,  but  not  inevitable  in  an  absolute 
sense,  because  the  right  of  self-defense  cannot  be  strictly 
construed  form  the  point  of  view  of  the  man  attacked, 
who  is  without  fault.  Girardi  correctly  says  in  his 
work,  "La  Difensa  Legittima,"  that  one  need  not  scru- 
tinize this  right  too  closely. 

§  184.  Self-defense  is  Limited  by  Circumstances. 
Self-defense  cannot  be  limited  by  conditions  which 
are  inconsistent  with  the  dignity  of  the  man  attacked; 
for  example,  flight;  or  which  require  a  cool  calculation 
of  the  most  suitable  means  of  avoiding  the  attack  arid 
lessening  its  brunt  at  a  moment  when  the  instinct  of  self- 
preservation  is  aroused  and  when  the  brain  is  confused. 
The  right  of  self-defense  in  its  fullest  extent,  as  a  deriv- 
ative of  "auctoritas  monastica,"  gives  protection  both  to 
life,  safety,  honor,  freedom,  and  even  personalty  and 
property,  the  projection  of  the  personality.  Grotius 
and  Rosmini  agree  to  this  fully  on  abstract  grounds, 
one  in  the  name  of  full  justice,  and  the  other  because 
of  his  conception  of  private  property.  But  public  feel- 
ing is  against  them,  and  does  not  lend  countenance  to 
death-dealing  in  defense  of  rights  or  property  of  little 
value.  It  is  certain  that  the  use  of  force  is  an  attribute 
of  a  right,  and  the  possessor  of  goods  can  have  recourse 
thereto  to  prevent  their  injury  or  destruction,  but  equity 
forbids  him  to  inflict  a  great  injury  to  avoid  a  little  harm 
which  can  be  easily  remedied.  It  must  be  understood, 
however,  that  if  to  preserve  property,  one  runs  a  risk  of  life 
through  the  attack,  then  no  matter  how  petty  the  thing, 
one  can  always  kill  the  assailant.  The  right  of  self- 


THE  RIGHT  TO  HONOR  333 

defense  belongs  not  only  to  the  man  attacked  but  to 
his  relatives,  friends,  and  in  fact  everyone  can  defend 
the  innocent  party,  since  all  men  are  bound  together  by 
a  natural  bond  that  each  one  must  help  his  neighbor. 
With  the  right  to  life  there  is  another  right  of  necessity 
or  "jus  sequivocum,"  which  is  only  an  agreement  to 
waive  punishment,  as  Kant  says.  It  is  when  a  starving 
man  commits  theft  to  save  his  life. 

§  185.  The  Right  to  Honor  and  Good  Name.  The  in- 
herent right  to  moral  life  connotes  honor  and  good 
name.  A  person  is  presumed  honorable,  and  there- 
fore should  be  treated  as  just  and  honorable  until  the 
contrary  is  proved.  Reputation  is  not  limited  by  life, 
but  comes  into  the  world  before  the  individual,  and  lasts 
after  his  death.  The  heirs  have  the  right  to  defend  the 
deceased's  reputation  and  memory  because  of  the  in- 
violability of  his  character,  whose  moral  existence 
extends  beyond  the  tomb.  Punishment  cannot  be  in- 
famous because  man  has  always  a  personality  in  the 
juristic  and  ethical  sense,  and  can  always  wash  away 
the  stains  of  dishonor  acquired  by  the  commission  of 
evil  deeds.  Disgrace,  a  consequence  of  a  man's  acts, 
is  the  effect  of  public  opinion,  and  cannot  be  inflicted  by 
statutes  nor  rationally  be  enacted  in  a  law.  The"exceptio 
veritatis,"  or  proof,  cannot  be  reached  by  attributing  acts 
to  a  person,  for  they  by  their  nature  belong  to  the  sphere 
of  autonomous  will  or  to  exclusive  valuation  of  the 
man.  Neither  can  it  be  reached  by  referring  an  unjust 
act  to  an  individual,  thus  giving  him  a  dishonorable 
qualification,  because  it  is  not  possible  to  give  a  defi- 
nition relying  upon  one  fact.  The  "exceptio  veritatis"  can 
be  accepted  under  facts  prosecutable  under  social  author- 
ity ex  officio;  that  is,  in  crimes  affecting  the  rights  of 
all  and  producing  social  harm.  It  is  important  to  society 
to  discover  crimes  and  to  pursue  criminals  because  it 


334  PRIVATE  LAW 

must    reinstate   the   violated   justice   and   look   to   the 
general  safety. 

§  186.  Dueling.  With  the  question  of  honor  comes 
the  question  of  dueling,  a  method  of  justice  unknown 
to  classical  antiquity,  when  the  State  wrapped  the  indi- 
vidual in  on  every  side,  but  appearing  in  the  barbaric 
Middle  Ages  when  the  State  was  powerless  and  high- 
handed individualism  was  strong,  in  whose  eyes  honor 
and  bravery  were  confused.  Dueling  is  an  absurd  custom 
because  to  accept  a  challenge  and  win  a  duel  are  acts 
which  can  constitute  the  proof  of  bravery  or  skill  at 
arms,  but  which  can  be  no  proof  of  morality,  justice,  or 
honor.  An  injury  to  these  is  only  remedied  through  the 
intrinsic  justice  of  the  public  conscience.  A  duel,  it 
is  said,  in  Chauveau  and  Helie's  "Theorie  du  Code 
P6nal,"  is  a  violation  of  the  holy  law  written  in  every 
heart,  "Thou  shall  commit  no  murder."  Not  only  does 
morality  forbid  it,  but  society  is  alarmed  by  it  and  with 
reason,  because  it  is  a  substitution  of  individual  in  place 
of  social  justice.  To  avenge  an  injury  disturbs  society. 
The  belief  in  the  justice  of  revenge  undermines  the  con- 
science. It  is  an  offense  against  the  public  peace.  A 
duel,  therefore,  is  criminal  for  three  reasons:  because  it  is 
an  attempt  against  the  life  or  body  of  a  man,  because 
it  is  against  public  peace,  because  it  represents  an 
irrational  predominance  of  the  "vis  privata."  The  con- 
sent of  the  duelists  does  not  do  away  with  the  crime 
because  the  maxim  "Volenti  non  fit  injuria,"  as  we  have 
observed  before,1  does  not  apply  to  the  inalienable 
rights.  It  is  not  logically  possible  to  let  a  duel  go  un- 
punished and  inflict  the  severest  penalty  upon  a  homicide 
committed  in  anger  and  under  provocation.  Who- 
ever, in  a  moment  of  anger,  kills  a  man  has  his  brain 
beclouded  and  his  mind  confused.  The  duelist  who 

1  Cf.  §  182  ante. 


THE  RIGHT  TO  FREEDOM  335 

kills  or  wounds  does  so  in  a  state  of  relative  calm  since 
several  days  have  passed  since  the  insult.  According 
to  some,  dueling  exists  because  of  the  not  unfounded 
conviction  of  the  insufficient  care  of  honor  taken  by  the 
statutes.  But  often  duels  grow  from  causes,  as  the 
He  given,  an  act  of  disrespect,  or  some  petty  rivalry, 
which  have  not  the  slightest  characteristic  of  a  crime. 
Any  increase  in  the  penalty  for  such  offenses  in  order 
to  avoid  duels  would  be  most  unjust  because  the  penalty 
should  be  commeasurable  to  the  intrinsic  value  of  the 
criminal  act.  Neither  by  such  a  remedy  would  the 
desired  end  be  attained  by  the  legislature,  as  Carrara 
says  in  his  "Programma,"  because  the  consideration 
of  the  severity  of  the  penalty,  which  the  insult  entails, 
does  not  affect  duelists.  The  insult  itself  is  the  cause. 
They  believe  it  a  mark  of  bravery  and  virtue  to  demand 
satisfaction  with  their  own  hands.  Penal  law  should 
punish  dueling  for  the  reasons  given  above  and  to  pro- 
test against  erring  public  opinion.  But  it  is  impossible 
for  it  to  destroy  the  practice.  The  eradication  of  this 
barbarous  custom  depends  in  the  first  place  upon  a 
change  of  public  conscience,  which  will  correct  its  error, 
and  secondarily  upon  statutes  which  can  only  indirectly 
take  the  glory  from  the  physical  bravery  of  the  duelists 
and  the  honor  from  this  kind  of  fighting.  Perhaps  the 
multiplication  and  reconstruction  of  courts  with  juris- 
diction according  to  class  and  rank,  permitting  the  con- 
sideration of  some  questions  of  honor  which  arise  from 
acts  which  are  not  criminal,  would  tend  to  overthrow  it. 
§  187.  The  Right  to  Freedom.  Granted  a  right  to  life, 
immediately  the  right  to  freedom  arises.  What  mass 
is  to  our  bodies,  freedom  is  to  the  person,  because 
the  person  has  his  distinct  ethical  essence  in  free 
will.  Under  its  general  aspect,  the  inherent  right  to 
freedom  is  confused  with  the  right  of  personality  and 


336  PRIVATE  LAW 

is  not  a  special  or  distinct  right  but  the  human  right 
above  all  others,  as  Spencer  says.  Conceived  in 
its  special  and  distinct  sense,  it  assumes  various 
forms,  because  there  are  freedoms  of  intellect,  moral- 
ity, religion,  economics,  civics,  and  politics.  Intellec- 
tual freedom  has  for  its  object  truth  and  beauty.  It 
concerns  science,  art,  and  education.  Moral  freedom 
is  the  autonomy  of  will,  by  which  the  motives  of  judg- 
ment and  conduct  are  freed  from  all  coercion  and  enter 
untrammelled  into  the  realm  of  juristic  valuation, 
evincing  themselves  in  actions  which  have  relation  to 
others'  rights.  Freedom  of  conscience  (including,  as  it 
does,  freedom  of  worship),  making  human  existence  and 
action  one,  is  not,  as  it  is  generally  denned,  the  internal 
and  absolute  power  of  the  individual  to  think  as  he  pleases 
in  matters  of  religion,  because  man,  by  nature  a  social 
being,  is  relative,  not  absolute.  True  and  full  freedom 
of  conscience,  or  of  election  in  matters  of  belief,  is 
developed  in  society  by  the  agreement  of  the  ma- 
jority of  the  individual  consciences  in  a  given  belief, 
and  a  common  and  identical  discipline  and  cult. 
Industrial  freedom  is  synonymous  with  competition  in 
the  production  of  goods.  It  is  the  freedom  to  make 
what  one  wants,  how,  where,  when,  and  in  whose  com- 
pany one  wants.  Civil  freedom  consists  in  the  undis- 
turbed exercise  of  private  rights,  while  political  freedom 
is  the  participation  of  the  citizens  in  the  control  of  the 
public  affairs. 

§  188.  Equity  and  Socialistic  Equality.  Spedalieri 
and  Romagnosi  teach  that  freedom  in  the  individual 
causes  equality,  and  therefore  the  inherent  corres- 
ponding right.  Men,  whether  units  or  citizens,  are  all 
equal.  Equality,  growing  out  of  abstract  personality, 
consists  in  the  possession  of  the  rights  essential  to 
the  individual;  that  is,  inherent  rights  or  theoretical 


THE  RIGHT  TO  ASSOCIATE  337 

and  ultimate  powers,  as  Romagnosi  (who  follows  Vico) 
calls  them,  confining  them  to  ownership,  freedom, 
and  safety.  This  abstract  equality  is  purely  formal; 
that  is,  equality  before  the  law.  But  the  manifes- 
tation of  freedom  in  individuals  is  marked  by  a 
natural  variety  in  quality,  quantity,  and  modality. 
It  appears  in  individual  and  primarily  diverse  forms 
because  individuality  is  as  primal  as  the  identity  of 
human  nature;  whence  comes  the  concrete  inequality 
which  governs  the  acquired  rights  and  practical  powers 
of  Romagnosi.  Formal  equality  is  above  the  con- 
crete inequality  and  takes  precedence  of  it.  Thus  a 
man  cannot  take  from  another  a  part  of  his  immense 
property,  for  the  same  reason  that  the  second,  who 
may  have  many  possessions,  cannot  take  part  of  the 
small  possessions  of  the  first.  An  inherent  right  or 
ultimate  power,  becoming  by  realization  an  acquired 
right  or  practical  power,  clothes  itself  in  an  infinite 
number  of  forms  due  to  the  various  nature  of  the  objects 
over  which  it  is  exercised  and  the  different  physico- 
moral  constitutions  of  its  subjects.  The  socialists  dis- 
regard the  medial  action  of  practical  power,  in  which 
lie  all  the  processes  of  individuality,  and  consider  only 
the  ultimate,  indeterminate  power  of  ownership  equal 
in  all,  and  its  agents  in  the  external  world  common 
in  themselves.  They  do  not  perceive  the  actual  and 
positive  bond  between  the  individual  and  the  object; 
they  deny  the  right  of  private  property  and  believe 
in  the  collective  ownership  of  instruments  of  labor. 
As  is  easily  seen,  absolute  equality  and  collectivism  can 
only  exist  in  abstract  Utopias. 

§  189.  The  Right  to  Associate.  Man  is  free  and  essen- 
tially social,  whence  the  inherent  right  to  associate. 
Even  among  animals  there  is  a  kind  of  social  intercourse, 
wonderful  in  its  forms  in  certain  species,  but  directly 


338  PRIVATE  LAW 

and  immediately  connected  with  their  physical  needs, 
remaining  always  instinctive,  and  never  passing  beyond 
the  limits  of  simple  aggregation.  Human  society,  on 
the  other  hand,  develops  through  reflexion  and  free 
will,  and  is  most  complex.  It  appears  with  most 
particularity  in  the  companies  and  partnerships,  which 
demand  the  cooperation  of  many  wills  for  one  object, 
a  knowledge  and  a  will  to  cooperate,  and  a  union  of 
many  wills  for  the  common  object.  The  companies 
and  partnerships  so  distinct  from  aggregations  owe 
their  origin  entirely  to  the  right  of  association,  and 
while  they  are  in  part  necessary  they  are  in  part  free 
and  eventual.  The  right  to  society  takes  in  all  the 
ends  of  life  applying  to  art,  literature,  science,  eco- 
nomics, morality,  religion,  and  politics.  It  assumes 
always  new  and  complex  forms  and  grows  more  and 
more  free  from  the  element  of  instinct.  We  can  see 
that  if  the  association  or  partnership  does  not  look  to 
one  or  more  common  interest  or  advantage  or  the 
utility  of  its  members,  according  to  what  is  right  and 
just,  but  tends  to  the  destruction  of  the  principles  of 
the  civil  constitution  or  organism  of  public  power,  whose 
existence  is  required  by  the  rights  of  all,  it  should  not 
be  recognized  or  tolerated. 

§  190.  The  Right  to  Aid.  Individual  man  is  not  self- 
sufficient,  but  tends  to  autarchy  and  full  self-realization 
in  all  possible  ways.  He  has  an  inherent  right,  as 
part  of  the  ethical  whole,  to  assistance,  and  this  right 
is  complementary  and  subsidiary  to  his  nature,  pre- 
supposing self-help  and  deficient  personal  power.  This 
right  can  be  upheld  as  a  necessary  condition  of  life 
independent  of  the  will  or  as  the  result  of  a  primordial 
state  of  freedom;  in  the  first  case  he  has  the  right  to 
social  assistance  because  society  is  an  indispensable  and 
natural  state,  in  the  second,  through  contract  and 
quasi-contract. 


THE  STATE  AND  ITS  EVOLUTION         339 

§191.     The  State  and  its  Evolution.     When  the  State 
and  the  people  were  antagonistic,  and  the  State  was 
considered  as  a  means  for  individual  ends,  the  political 
ideal  lay  in  the  constant  diminution  of  action  by  the 
political  power.     And   it  was  held  that  the  activity  of 
the    individual    in    the    course    of    civilization    would 
almost    entirely  take    its   place    except  in   the    main- 
tenance of  public  safety  and  protection.     But  if    the 
State  is  an  organism,  it  cannot  escape  from  evolution, 
which    causes    a    constantly    increasing    complexity    of 
relations,  functions,  and  powers,  as  has  been  shown  be- 
fore.    The  State,  in  the  progress  of  time,  has,  on   one 
side,  lost  many  functions  which  implied  a  denial  of  the 
principle  of  personality  and  individual  initiative,  but, 
on  the  other  hand,  it  has  acquired  a  large  number  of  new 
powers  intended  to  help,  aid,  and  protect  in  a  thousand 
ways  the  growing  affairs  of  the  individual.     The  more 
the  modern  State  develops,  the  more  it  tries  in  every 
way  to  help  individual  activity,  once  aroused;  but  its 
aid    is   not  given  in    inverse    but    in    direct    ratio    to 
individual  effort.     Spencer  and  Wagner  are  both  wrong 
in  their  defense  of  two  opposite  theories.     One  thinks 
that  the  action  of  the  State  diminishes  in  ages  of  civili- 
zation, while  the  other  thinks  that  it  increases  to  the 
great  danger  of  individual  energy  and  initiative.     Ex- 
perience shows  that  neither  of  these  theories  is  true, 
because  the  number  of  the  functions  of  the  State  in- 
creases and    the  public  expenses  are  enormously  aug- 
mented, while  at  the  same  time  there  is  a  great  increase 
in  social  wealth.     The  first  two  facts  discredit  Spencer's 
opinion;  the  third  is  opposed  to  Wagner's.     We  may 
further  observe  that  Spencer  contradicts  himself  because 
he  recognizes  the  State  as  an  organism,  and,  although  the 
great  master  of  the  doctrine  of  evolution,  applies  it  only 
to  the  individual  and  not  to  the  State.     For  certainly 


340  PRIVATE  LAW 

he  is  not  making  the  State  subject  to  evolution  when  he 
says  that  the  individual,  with  progress,  becomes  more 
active,  as  it  were,  gains  new  powers;  and  the  State  loses 
those  that  it  had  and  could  still  have  in  relation  to  society, 
and  retains  merely  its  juridical  and  negative  duties. 

§  192.  The  Right  to  Work,  Distinguished  from  the 
Right  to  Work  of  the  Socialists.  The  individual,  free, 
social,  and  assisted  by  the  community,  accomplishes 
his  objects  and  has  a  last  inherent  right,  that  is,  to 
work,  consisting  of  freedom  to  exercise  his  forces 
and  attributes  in  the  production  of  goods  and 
wealth.  The  State  for  its  part,  to  quote  Romagnosi, 
is  confined  to  giving  the  people  social  worth,  that  is 
to  say,  to  making  men  skilled  in  different  kinds  of  pro- 
duction, and  to  awakening  their  productive  powers  by 
instructions  and  education.  This  right  to  work,  how- 
ever, must  not  be  confused  with  that  other  right  to 
work  announced  by  the  socialists,  in  which  the  individual 
can  normally  go  to  the  State  and  obtain  from  it  the  ob- 
jects and  the  means  for  the  exercise  of  his  business. 
This  right  cannot  be  recognized,  because  the  State 
exists  with  the  object  of  protection,  education,  and 
happiness,  and  not  to  constitute  or  keep  alive  any 
especial  kind  of  business.  The  modern  State  partic- 
ularly feels  a  certain  repugnance  to  assuming  functions 
which  have  a  comparatively  economic  character.  It  has 
sold  its  lands  and  no  longer  exercises  any  industries 
along  the  line  of  private  effort,  and  gets  its  greatest 
revenue  from  the  customs.  And  if  it  enters  into 
economic  affairs,  it  is  only  because  private  effort  is  not 
made,  or  not  made  with  sufficient  vigor,  or  else  to  destroy 
the  harmful  effects  of  a  monopoly  or  give  financial  en- 
couragement. The  State  does  not  take  the  place  of  the 
individual  in  business,  but  protects  him  and  helps  him 
make  his  efforts  availing.  The  right  to  assistance  is 


THE  RIGHT  TO  WORK  341 

complementary  and  subsidiary  and  presumes  the  prin- 
ciple of  self-help  and  personal  initiative,  as  we  have  said 
above.1  Thornton,  in  his  book  on  "Labor,"  asks  why 
the  rich  have  any  duty  to  save  from  starvation  in  any 
way  at  all  those  who  come  into  the  world  without  act 
of  theirs.  Has  the  world  been  given  to  humanity  on 
condition  that  it  feed  all  its  inhabitants?  Or  has  part  of 
humanity  been  deprived  of  the  means  necessary  to  life? 
If  the  first  is  true,  the  condition  imposed  is  not  just, 
because  the  population  would  rapidly  surpass  the  means 
of  subsistence;  one  must  remember  the  Malthusian 
theory  that  population  tends  to  increase  with  greater 
rapidity  under  the  best  industrial  conditions  than  the 
means  of  subsistence.  But  to  put  aside  at  once  any  dis- 
cussion about  the  geometric  progression  of  population 
and  the  arithmetical  progression  of  the  means  of  subsis- 
tence, there  is  no  doubt  that  propagation  is  too  easy  for 
existence  to  be  without  a  struggle.  If  we  answer  the 
second  question  in  the  affirmative,  one  should  return  to 
the  disinherited  all  that  would  have  been  their  share 
if  the  land  had  not  been  allotted.  In  this  case,  they 
would  need  the  fragments  from  the  tables  of  the  rich  to 
pay  the  equivalent,  because  land  is  of  little  value  with- 
out work.  If  we  recognize,  therefore,  this  right  to  work, 
capital  would  diminish  to  a  marked  degree,  because  the 
State,  become  purveyor  of  labor,  would  take  through 
duties  and  customs  the  savings  of  the  citizens  to  a  great 
extent.  Besides,  the  State  would  always  need  to  have 
ready  the  material  for  work  in  all  the  industries  of  mind 
and  hand.  The  sloth  of  laborers,  sure  of  their  wage, 
would  be  the  practical  consequence  of  the  establishment 
of  this  so-called  right. 

§  193.     The  Correlation  of  Rights  and  Duties.     So  far 
we  have  defined   the  individual  in  the  juristical  sense 

lCf.  §  190  ante. 


342  PRIVATE  LAW 

as  the  subject  of  rights  and  duties,  and  we  have 
seen  that  the  individual  is  man  and  that  man  is  the 
personal  unit.  The  two  conceptions  are  interchangeable 
because  equipotent  in  the  philosophy  of  law  and,  for 
that  matter,  in  positive  law.  Full  civil  capacity  em- 
braces the  enjoyment  or  possession  of  rights  and  their 
exercise,  that  is,  the  capacity  of  the  right  and  its  use. 
The  enjoyment  can  be  without  the  exercise,  but  the 
exercise  presupposes  the  enjoyment.  We  understand 
that  civil  capacity  is  full  or  limited,  depending  upon 
whether  the  intelligence  and  will  of  the  person  is  per- 
fectly or  imperfectly  developed.  This  limitation  has 
to  do  with  the  exercise  and  not  with  the  possession, 
because  there  is  no  person  without  rights,  although 
he  may  not  know  of  their  existence;  as,  for  example,  a 
baby  or  an  embryo.  But  it  is  certain  that  he  has  not 
duties  if  he  is  ignorant  of  them.  This  is  not  true  of 
rights,  because  a  man  merits  respect  because  he  is  man, 
without  his  knowledge  of  the  respect  that  is  due  him. 
It  is  sufficient  if  the  duty  of  respect  be  known  to  them 
who  should  exercise  it.  The  individual  begins  by  having 
rights  and  not  duties  through  his  lack  of  knowledge  of 
the  latter.  And  thus  there  is  not  a  correlation  of  rights 
and  duties  in  the  same  individual  though  there  is  between 
different  individuals.  The  civil  capacity,  of  which  we 
speak  here,  differs  from  political  capacity  inasmuch  as 
it  is  more  complex  and  makes  for  ends  more  ethical  and 
general,  and  therefore  needs  for  its  exercises  new  condi- 
tions and  attitudes,  besides  those  requisite  in  the  exer- 
cise of  private  rights.  The  limitations  of  civil  capacity 
are  determined  by  the  interest  of  the  persons  who  are 
subject  thereto;  the  limitations  of  political  capacity 
from  the  conception  of  the  welfare  of  the  State. 


MAN  IN  A  STATE  OF  NATURE  343 


CHAPTER    II 

THE  HISTORICAL  CONCEPTION  OF 
INHERENT  RIGHTS 

THE  RIGHTS  OF  MAN  IN  THE  STATE  OF  NATURE.  —  THE  STATE 
OF  NATURE  ACCORDING  TO  THE  PHILOSOPHERS  OF  THE  XVIII 
CENTURY  CONSIDERED  IN  CONNECTION  WITH  THE  NATURAL 
STATE  OF  THE  ROMAN  JURISCONSULTS  AND  THE  GREEK  PHIL- 
OSOPHERS.—THE  THEORY  OF  KNOWLEDGE,  AND  THE  METHODS 
OF  CONCEIVING  THE  ESSENTIAL  RIGHTS  OF  THE  PERSON.— 
THE  INHERENT  RIGHTS  OF  MODERN  PHILOSOPHY.— THE 
REGIMES  OF  STATUS  AND  CONTRACT. 

§  194.  With  Abstract  Thought  Comes  Self-realization. 
The  individual,  at  first  absorbed  in  the  ancient  State, 
then  bound  down  by  imperial  and  ecclesiastical  power 
and  later  by  absolute  monarchy,  begins  to  take  action, 
and  acquires  with  the  passage  of  time  full  knowledge 
of  his  power.  With  the  development  of  abstract  thought 
he  sees  his  own  possibilities.  He  tries  to  escape  from  the 
historical  bonds  which  are  opposed  to  his  individuality. 
He  imagines  a  primitive  and  extra-social  state  of  exist- 
ence, and  calls  it  the  beginning  and  end  of  the  moral 
world,  and  so  he  acquires  all  those  abstract  ideas  which 
caused  the  French  Revolution. 

§  195.  Man's  Powers  in  a  State  of  Nature,  It  is 
clear  that  to  cause  such  a  movement,  inherent  rights 
must  be  conceived  as  the  powers  of  man  in  a  state 
of  nature.  Hobbes  admits  an  original  right  of  everybody 
to  everything  in  such  a  state,  which  was  a  cause  of  general 
warfare.  Locke  recognizes  in  it  a  law  comprehensive 


344  INHERENT  RIGHTS 

of  the  right  to  life,  freedom,  and  property,  and  a  certain 
power  of  punishment  over  the  individual.  Rousseau 
regards  it  as  a  primitive  condition  typical  of  the  life  of 
humanity,  but  one  not  found  at  the  present  day,  which 
allowed  full  and  positive  exercise  of  freedom,  equality, 
and  independence.  According  to  this  doctrine,  the 
mind  in  the  primitive  epoch  could  grasp  the  idea  of  the 
essential  and  universal  rights  of  the  individual ;  that  is, 
the  object  of  the  social  contract.  The  constitutional 
agreement  of  a  civil  community  or  State  towards  man's 
inherent  rights  could  then  be  formulated.  As  we  have 
said  before,  Rousseau,  believing  in  the  principle  of  inalien- 
able freedom,  resolved  the  problem  by  finding  a  kind  of 
political  union  in  which  freedom  was  not  lost,  but  each 
citizen  in  obeying  the  State  obeyed  himself,  with  a  full 
and  reciprocal  renunciation  of  all  individual  rights  to 
the  community.1 

§  196.  The  Doctrine  of  the  Natural  Goodness  of  Man. 
The  philosophy  of  the  XVIIIth  Century  believed  in  the 
natural  goodness  of  man,  his  original  unlimited  freedom, 
and  a  primal  law  of  nature.  It  taught  that  social  acts 
are  governed  by  laws  of  nature,  which  lead  men  to  happi- 
ness, if  the  vices  of  existing  institutions  did  not  inter- 
fere. Rousseau  says  that  everything  is  good  as  it  conies 
from  the  hands  of  nature;  Turgot  holds  that  man  is 
good  by  nature;  and  Quesnay  founds  the  physiocratic 
doctrine  on  that  of  the  reign  of  nature,  and  believes  in 
the  restoration  of  the  empire  of  natural  law  through 
the  abolition  of  all  artificial  and  arbitrary  ordinances 
that  impede  its  development.  Adam  Smith  adheres  to 
these  principles  in  "The  Wealth  of  Nations,"  and  says 
that  the  obstacles  will  disappear  with  the  establishment 
of  a  simple  system  of  natural  freedom.  His  followers 
never  grow  tired  of  repeating  with  the  physiocrats 

lCf.  §  101  ante. 


BELIEF  IN  A  GOLDEN  AGE  345 

the  doctrine  of  leaving  all  to  nature  —  of  conforming 
to  God's  will.  Economic  optimism  reached  finally  its 
most  splendid  expression  in  the  necessary  and  inevitable 
harmonies  of  Bastiat. 

§  197.  The  State  of  Nature  is  Found  in  theEarliest  Writ- 
ings. The  doctrine  of  original  perfection  and  the  state  of 
nature  is  connected  with  the  oldest  traditions  of  a  Golden 
Age,  anterior  to  society,  and  has  in  Italy  its  historical 
antecedent  in  the  treatise  of  Girolamo  Vida  on  "Dignita 
della  Republica,"  published  in  1556,  and  in  the  work  of 
Giovanni  Bonifazio,  "La  Republica  delle  Api,"  edited  in 
1627.  Vida  begins  the  "apologia"  of  the  state  of  nature 
and  criticizes  society,  saying  that  Theseus,  who  changed 
Attica  from  a  pastoral  state  to  one  of  civilization,  was 
the  author  of  a  public  calamity.  Bonifazio  describes  the 
customs  of  the  inhabitants  of  an  imaginary  island  of  the 
Pacific,  who  follow  their  own  will  in  a  state  of  nature, 
without  statutes  or  codes,  without  popes,  priests  or 
monks,  the  men  worshiping  the  sun  and  the  women 
the  moon. 

§  198.  The  Jurisconsults'  Belief  in  a  Golden  Age. 
Roman  jurisconsults  of  the  classical  age,  under  the 
influence  of  Stoic  philosophy,  speak  also,  though  very 
vaguely,  of  a  primeval  state  of  nature  and  of  a  remote 
antiquity  in  which  natural  law  had  the  force  of  statutes. 
It  is  written  in  the  Institutes:  "Palam  est  autem  vetustius 
esse  naturale  jus,  quod  cum  ipso  genere  humano  rerum 
prodidit:  civilia  enim  jura  turn  esse  coeperunt,  cum  et 
civitates  condi  et  magistratus  creari  et  leges  scribi 
cceperunt."  But  we  must  observe  that  with  the  Greeks 
the  word  nature  signified  primarily  the  physical  world  as 
a  manifestation  of  a  single  principle,  and  only  later  was 
used  to  indicate  the  moral  world,  governed  by  general 
and  simple  laws;  therefore,  to  live  according  to  nature 
meant  to  live  normally  with  one's  kind.  The  juris- 


346  INHERENT  RIGHTS 

consults,  imbued  with  the  Greek  idea  of  a  state  of  nature 
and  believing  it  to  be  a  primitive  order  of  life,  taught 
that  freedom  and  equality  are  natural  rights;  to  cite 
the  Institutes:  "Jure  enim  naturali  omnes  homines  ab 
initio  liberi  nascebantur.  Quod  ad  jus  naturale  attinet, 
omnes  homines  sequales  sunt." 

§  199.  The  Difference  between  the  Belief  of  the  Juris- 
consults and  the  Physiocrats.  Yet  we  must  admit  the 
Roman  jurisconsults,  in  recognizing  the  reign  or  state 
of  nature,  differed  not  a  little  from  the  greater  number 
of  the  authorities  of  our  own  times,  because  they  did 
not  emphasize,  as  the  latter,  conditions  which  were 
extra-social  or  of  savage  isolation,  but  meant  by  the 
reign  of  nature  a  primitive  State  ruled  by  simple  and 
harmonious  laws.  There  is  a  profound  and  general 
belief  among  the  jurisconsults  in  a  "societas  gentium" 
or  "generis  humani"  as  the  product  of  nature.  The 
quotation  cited  above,1  besides  others,  proves  it,  and 
Gaius  says,  "Juris  enim  gentium  est  societas,  quam 
inire  omnes  homines  naturali  ratione  possunt."  Satur- 
ninus  also,  "Natura  hominum  est  communis";  and 
Florentinus  adds,  "Inter  nos  cognationem  quamdam 
natura  constituit."  Cicero  welcomes  the  Stoic  idea, 
"Hominum  causa  homines  esse  generates,"  and  accepts 
the  other  belief,  which  he  expresses  in  many  ways; 
"Mundum  autem  esse  quasi  communem  urbem  et 
civitatem  hominum  etdeorum."  Seneca  writes,  "Natura 
amorem  indidit  mutuum  et  sociabiles  fecit."  Over  the 
minds  of  the  j  urisconsults,  the  Epicurean  theory  (though 
reproduced  by  Lucretius,  Horace,  Vitruvius,  and  in  places 
by  Vergil  and  even  Cicero)  did  not  exercise  a  great 
influence.  This  theory  teaches  that  men  in  the  beginning 
live  "more  ferarum"  as  a  "mutum  et  turbe  pecus," 
struggling  among  themselves,  "pugnantes  unguibus  et 

1  Cf.  §  198  ante. 


THE  EARLY  GREEKS  347 

pugnis  propler  glandem  et  cubilia,"  ignorant,  without 
marital  or  paternal  relations,  with  no  moral  sense. 
In  such  a  primitive  period  fear,  utility,  and  blind  chance 
were  the  beginning  of  society,  according  to  the  followers 
of  Epicurus.  Furthermore,  the  ancient  philosophers  and 
jurisconsults  do  not  deny  the  present  control  of  natural 
law  but  think  that  positive  law  must  gradually  become 
like  it,  while  our  philosophers  do  not  see  its  existence  in 
actual  reality  and  wish  radical  and  immediate  transfor- 
mations in  society  to  realize  their  fantastic  types. 

§  200.  The  Early  Greeks  Believed  in  the  Connection  of 
Natural  and  Positive  Law.  The  conception  of  a  primi- 
tive order  of  nature  among  the  Greeks  is  older  than 
Stoic  philosophy  and  belongs  to  the  Sophists,  accord- 
ing to  the  statements  of  Chiappelli.  The  idea  of 
nature  was  the  beginning  of  speculative  thought  be- 
fore the  time  of  the  Sophists,  and  is  the  base  of 
ethics  in  the  first  phase.  Prodicus  of  Chios  and  Hip- 
pias  of  Elis  placed  nature  above  positive  law  and 
therefore  in  opposition  to  it.  According  to  these  two 
Sophists,  the  honest  and  just  have  roots  in  nature 
from  which  the  positive  law  has  far  departed.  We 
must  return  to  a  state  of  nature  if  we  wish  the  rule  of 
justice.  Other  Sophists,  to  quote  Chiappelli,  believed 
the  contrary  and  placed  positive  law  above  nature,  re- 
garding it  as  the  purification  of  the  undeveloped  and 
savage  state  of  nature,  or  as  an  artificial  convention 
and  superimposed  fiction.  This  is  the  position  of  Protag- 
oras, the  idea  of  King  N6/«>s,  and  the  destructive  theory 
of  the  later  Sophists.  According  to  Hippias,  the  un- 
written laws  of  nature  enter  into  all  legislation  because 
they  are  a  divine  work,  while  positive  laws  are  various 
and  contradictory,  being  the  offspring  of  accidental 
agreements  of  men.  Statutes  often  do  violence  to  nature 
and  create  inequalities  between  fellow-beings.  The  typi- 


348  INHERENT  RIGHTS 

cal  human  life  can  only  be  found  in  primitive  conditions 
and   not  in   civil   life.     We   must   not   marvel   at  such 
beliefs  if  we  consider  slavery  as  an  institution  contrary 
to   nature   introduced  by  positive   law.     A   Sophist,  a 
disciple   of   Gorgias,   Alcidama   by  name,   taught  that 
the  gods  gave  freedom  to  all,  and  that  nature  never 
introduced  slavery.     Aristotle  referred  to  the  fact  that 
many  believed  slavery  wrong  and  combated  that  opinion. 
Later  a  tendency  contrary  to  the  movement  instituted 
by  Hippias  grew  up  among  the  Sophists  tending  to 
destroy  the  moral  reason  of  nature  and  to  sustain  in  its 
place  civil   custom   and   convention.     Gorgias  showed 
that  the  state  of  nature  must  either  be  variable  or  con- 
stant; if  variable  it  cannot  be  the  ethical  norm,  if  con- 
stant it  can  only  be  the  beginning  of  civilization.     And 
he  adds  that  we  cannot  be  sure  that  it  ever  existed  and 
further  that,  if  we  can  have  definite  knowledge  of  it, 
its  reinstatement  in  the  changed  conditions  of  society 
is  impossible.     Protagoras  compares  the  natural  state 
to  that  in  which  man  has  neither  education,  statutes, 
courts  nor  the  force  which   urges  him   to  excellence; 
saying  that  men  in  such  a  state  are  savages  resembling 
the  famous  Chorus  of  Misanthropes  of  the  poet  Phere- 
crates.     In  his   mind    excellence  is  attainable  in  civil 
life  by  education.     The  State  decrees  the  norms  of  moral 
life  by  its  statutes;  therefore  the  honest  and  just  are 
determined  through    them    by  public  opinion.     Justice 
is  a  reality,  not  because  a  gift  of  nature,  but  because 
the  result  of  a  higher  power,  that  is,  of  a  political  agree- 
ment.     Such  is,   in  a  few  words,   the   signification  of 
King  N6/«>s.     From  these  opposite  principles  of  Hippias 
and    Protagoras,    the  Sophists,   Callicles,    and    Thrasi 
machus  come  to  the  apotheosis  of  individual  sovereignty, 
despotism,  and   anarchy.     Callicles  argues  as   follows: 
that  if  a  state  is  not  a  convention  contrary  to  the  laws 


THE  GOLDEN  AGE  349 

of  nature,  and  if  in  nature  might  is  right,  he  infers  that 
the  just  is  what  he  who  has  the  might  wishes  and  makes 
it.  In  society  the  majority  rules  the  stronger  individuals, 
who  await  an  opportunity  to  rebel  and  free  themselves 
from  this  state  of  impotence  by  overthrowing  the  con- 
stituted order  from  its  base.  Thrasimachus  departs 
from  the  conceptions  of  Protagoras,  and  shows  that  if 
there  is  justice  in  the  statutes  of  the  State,  inasmuch 
as  these  are  rules  imposed  by  the  stronger,  justice  is 
only  utility;  that  is,  the  interest  of  the  stronger.  Thus 
the  two  schools  of  the  Sophists,  one  teaching  the  suprem- 
acy of  nature  over  law  and  the  other  teaching  the 
supremacy  of  law  over  nature,  lead  to  the  same  result; 
that  is,  despotism  and  social  dissolution. 

§  201.  The  Golden  Age  an  Impossibility,  as  Shown 
by  the  Historical  Trend  of  Government.  Admitting  a 
primitive  order  of  nature  ruled  by  this  "jus  naturale," 
and  from  this  the  growth  of  freedom  and  equality  of 
all,  we  must  conclude  that  the  mind  of  a  man  in  the 
initial  ages  could  not  conceive  of  the  notion  of  "jura 
innata,"  or  essential  and  universal  powers.  It  would 
discredit  the  evolution  of  the  human  mind,  which  from 
the  consideration  of  phenomena  goes  on  to  that  of  the 
essence,  from  the  particular  to  the  universal,  and  from 
the  prompting  of  the  senses  or  instinct  to  the  attainment 
of  freedom.  And  we  fall  into  the  error  of  generalizing 
from  the  present  and  transferring  it  with  aid  of  fancy 
into  the  distant  past.  Natural  man  is  also  social  man, 
but  the  social  conscience  is  undeveloped  in  him.  He 
is  not  rational  and  good  as  the  philosophers  of  the  last 
century  imagined  him,  but  selfish,  without  a  sense  of 
evil,  and  impatient  of  restraint.  In  the  first  grade  of 
society  everything  belongs  to  the  strength.  Violence 
is  the  measure  of  right.  Whoever  is  better  armed  and 
possesses  an  organically  stronger  constitution  conquers 


350  INHERENT  RIGHTS 

and  kills  him  who  is  less  prepared  for  the  struggle  of  ex- 
istence, as  is  shown  by  the  life  of  plants  and  animals. 
Civilization  is  the  emancipation  of  man  from  the  yoke  of 
foreign  influences,  and  freedom  from  the  wild  state,  pic- 
tured by  Epicurus  and  Hobbes,  who  believed,  however,  in 
a  condition  of  solitude  to  which  society  has  succeeded 
as  an  artificial  creation.  Society  progresses  and  extends 
as  man  grows  further  away  from  the  primitive  world. 
The  idea  of  a  "jus  naturale,"  common  to  our  entire 
species  and  fitted  to  the  principles  of  a  "naturalis  ratio," 
in  which  the  essence  of  man  is  found,  could  not  have  a 
place  in  our  mind,  if  we  first  had  not  thought  out  and  com- 
pared the  many  similarities  and  likenesses  among  the  di- 
verse laws  of  different  peoples.  Neither  can  there  be  any 
doubt  that  the  conception  of  the  constitution  of  society 
and  the  State,  through  contract,  exceeds  the  force  of  the 
rude  primitive  intellect  and  is  modern,  because  the  pre- 
dominance of  contracts  in  all  relations  of  ethical  life 
show  the  most  extended  and  exaggerated  affirmation  of 
the  principle  of  individual  freedom.  Now  the  law  of 
primitive  times  was  not  founded  on  the  individual  but 
on  the  tribal  or  family  community,  and  made  rather  a 
"jus  cogens"  than  "voluntarium,"  disciplining  men  to 
the  control  of  power  or  will. 

§  202.  The  Development  of  Reason.  It  is  a  fact  that 
the  mind  at  first  tries  to  explain  the  relation  of  phe- 
nomena superficially  and  arbitrarily,  trusting  to  the 
fallacious  testimony  of  the  senses,  not  going  beyond 
the  sphere  of  purely  assertive  and  simple  judgments. 
Judgments,  in  this  stage  of  intellectual  development, 
are  assertive  (inasmuch  as  they  are  founded  entirely 
upon  our  intuition)  and  simple  (because  they  grow 
from  sensation).  As  the  mind  progresses,  judgment 
becomes  problematic,  because  the  mind  is  not  satis- 
fied with  primitive  conceptions  external,  rough  and 


DEVELOPMENT  OF  REASON  351 

not  conforming  to  fact;  and  consequently  it  begins  to 
be  bothered  by  that  fecund  doubt  which  is  the  father  of 
science.  A  thing  can  be  thus  and  so  from  problematical 
judgment,  so  we  search  for  particular  judgments  and  thus 
discover  that  not  all  things  of  a  given  kind  have  a  cer- 
tain quality,  but  only  some  of  them.  Then  the  intellect 
succeeds  in  comprehending  the  essential  elements  of 
phenomena,  and  from  hypothetical  judgment  attains  the 
apodictic  or  universal,  which,  being  universal,  is  there- 
fore necessary  and  certain.  It  appears  to  us  that  the 
theory  of  cognition,  contained  in  Hegel's  "Phanomonol- 
ogie  des  Geistes,"  best  explains  both  the  doctrine  of  the 
evolution  of  ethical  relations  in  general,  and  of  individual 
rights  in  particular,  because  it  is  applicable  to  all  forms 
of  knowledge,  both  in  its  theoretical  and  practical  aspects. 
There  may  well  be  knowledge  born  in  a  moment  of 
action  and  after  simple  theoretical  cognition  of  which 
we  must  take  account  if  we  wish  to  resolve  the  problem 
of  knowledge  in  its  integrity.  Butthe"Phanomonolbgie" 
begins  with  the  most  elementary  and  lowest  form  of 
knowledge,  that  is,  from  the  knowledge  which  has  but 
one  object,  and  is  not  certain  of  anything  except  of  the 
existence  of  something  distinct  from  itself,  whose  nature 
and  name  it  is  ignorant  of.  In  representation,  the  second 
stage,  knowledge  knows  that  the  object  is  such  and  such 
an  external  thing  with  such  and  such  qualities.  In  the 
mind,  therefore,  knowledge  has  within  itself  intelligence, 
a  universality  with  its  inherent  and  essential  attributes, 
one  and  indivisible.  The  purpose  of  knowledge,  there- 
fore, is  always  distinction  and  correlation.  So  the  ego 
is  fundamentally  the  consciousness  of  consciousness  or 
auto-consciousness,  because  the  object  has  the  same  form. 
So  the  ego  is  identical  with  the  object,  but  that  it  does 
not  recognize  this  is  the  cause  of  immediate  or  appetitive 
auto-consciousness.  If  the  ego  and  the  object  were  not 


352  INHERENT  RIGHTS 

identical  it  could  not  have  this  desire,  which  is  for  its 
own  essence,  to  which  it  is  attracted.  And  if  it  knew  of 
the  identity  this  desire  would  cease  to  exist,  being  satis- 
fied by  practical  knowledge  of  the  object.  When  the 
object  is  not  another  ego  in  which  the  subject  can  see 
and  find  itself,  but  is  a  thing  which  is  consumed  in  the 
act  of  satisfaction,  the  knowledge  of  this  identity  of 
subject  and  object  is  not  attained.  If  one  ego  be  placed 
before  another,  at  first  it  denies  and  excludes  the  other, 
as  each  has  a  different  sense,  knowledge,  will,  and  body. 
Because  of  this  exclusion  there  is  a  struggle  between 
the  two  auto-consciousnesses,  —  a  struggle  of  life  and 
death,  in  which  each  ego  has  a  body.  The  struggle  is 
mortal,  but  after  the  death  of  one  auto-consciousness  the 
other  does  not  discover  itself  in  the  one  which  is  dead: 
preservation  of  life  is  necessary  for  recognition.  Later 
the  victorious  auto-consciousness  grants  existence  to 
its  victim  and  makes  it  its  subject,  whence  arises  a  new 
relation  between  the  two  units,  —  that  of  master  and 
servant.  The  ego,  become  master,  no  longer  sees  in  the 
servant  an  enemy,  but  takes  thought  for  its  protection, 
and  later,  through  habit,  considers  it  as  a  part  of  itself; 
the  servant  ego  fears  and  obeys  its  master  and  thus 
loses  sight  of  itself.  It  works  for  the  master  and  makes 
its  own  circles  of  interest  include  that  of  the  other  unit; 
hence,  "Timor  domini  est  initum  spientise  et  libertatis;" 
and  is  the  groundwork  of  the  discipline  which  conquers 
natural  freedom  and  fits  man  to  control  himself  and 
others.  It  is  useful  to  observe  with  Spaventa,  in  his 
"Principi  di  Filosofia,"  that  the  servant  ego  of  the 
"Phanomonologie"  is  appetitive  auto-consciousness ;  that 
the  ego  in  which  appetition  alone  is  aroused  has  neither 
theoretical  nor  practical  reason;  and  that  the  servitude 
is  not  a  constraint  on  a  free  ego,  but  is  merely  the  edu- 
cation of  man  about  to  become  free.  Freedom  and 


HUMAN  DEVELOPMENT  353 

equality  succeed  slavery.  The  form  of  mind  has  within 
itself  the  form  of  auto-consciousness,  a  perfect  identity 
always  distinct  in  itself  between  the  subject  and  object, 
—  the  beginning  of  logic. 

§  203.  Vico's  Sketch  of  the  History  of  Human  Develop- 
ment. History  shows  that  from  fear  and  slavery  came 
freedom.  Vico  teaches  that  civil  peace  and  human  free- 
dom consisted  in  keeping  within  bonds  the  motives  of 
desire,  which  made  their  appearance  in  the  world  as  the 
effects  of  frightful  superstition.  With  the  first  thunder- 
bolts after  the  flood,  men  of  gigantic  nature  were  panic- 
stricken  and  lost  their  pride  and  ferocity,  and  became 
subject  to  a  superior  force,  hiding  themselves  in  the  caves 
of  the  mountains,  whither  they  dragged  women,  whom 
they  held  prisoners,  keeping  them  always  in  their  com- 
pany throughout  their  lives.  This  gave  origin  to  the 
first  human  marriages  with  definite  wives,  children,  and 
fathers,  and  therefore  created  the  family.  Of  a  proud 
and  fierce  nature,  they  ruled  with  a  Cyclopean  hand  over 
their  children  and  wives.  And,  upon  the  growth  of  the 
cities,  men  thus  prepared  were  already  disposed  to  civil 
control.  Providence  ordained  some  economic  republics 
of  monarchical  form  under  the  Patriarchs,  who  were  the 
strongest  in  sex,  age,  and  virtue,  and  who,  in  the  state 
of  nature  or  in  the  family  age,  had  formed  the  first 
communities,  owning  their  own  land,  harvesting,  hunting, 
and  effecting  a  family  government  over  their  servants. 
But  men,  after  a  long  period,  blinded  by  the  force  of 
their  own  evil  deeds,  which  had  resulted  in  an  infamous 
promiscuity  of  chattels  and  wives,  grew  shameless  and 
wicked ;  and  driven  to  a  life  of  violence  by  the  strife  born 
of  this  infamous  license,  they  again  sought  refuge  with 
the  Patriarchs,  who  received  them  into  their  protection  as 
retainers.  Now,  is  not  the  dependence  on  the  Patriarchs 
of  the  retainers,  deep-dyed  with  sensuous  cupidity, 


354  INHERENT  RIGHTS 

fundamentally  identical  with  the  dependence  of  the  appe- 
titive or  servant  auto-consciousness  or  on  the  free  and 
master  auto-consciousness?  Is  not  this  dependence  the 
source  of  freedom?  The  retainers,  under  the  discipline 
of  the  Patriarchs,  little  by  little  became  pious,  wise,  and 
virtuous,  and  the  Cyclopean  realms  became  civil  and  free 
states.  Bagehot,  who  applies  the  Darwinian  theory  to 
political  life  and  formation  of  national  character,  admits 
that  centuries  of  stagnation,  monotony,  and  slavery 
preceded  the  times  of  progress,  variety,  and  freedom,  and 
are  a  preparative  necessity. 

§  204.  The  Struggle  for  Individual  Freedom.  From  this 
premise,  it  follows  that  inherent,  essential,  and  universal 
rights  must  be  conceived  as  originally  acquired,  accident- 
al, and  particular  powers  of  the  individual.  In  other 
words,  those  natural  rights  first  appeared  as  acquired 
powers  in  an  accidental  manner,  as  faculties  introduced 
by  a  causation  deep  in  the  moral  or  religious  ideas  of 
certain  social  classes  or  by  a  new  positive  justice,  and 
developed  in  the  struggle  to  conform  to  the  conditions 
of  existence.  Afterwards,  such  faculties,  having  the  ad- 
vantage of  showing  a  higher  degree  of  rational  growth, 
remained  victorious  in  their  struggle  against  the  insti- 
tutions which  retarded  their  development,  and,  strength- 
ened by  custom  and  heredity,  became  original,  necessary, 
and  common  rights,  after  human  nature  had  recognized 
her  own  essence  in  them.  The  history  of  the  right  of 
personality,  although  not  a  special  and  separate  right, 
but  the  source  of  every  faculty,  brings  us  face  to  face 
with  all  the  phases  of  the  "jura  innata."  For  centuries 
the  individual  was  the  subject  of  acquired  rights,  par- 
ticular and  accidental,  because  all  men  were  not  born 
free  and  those  who  were  became  so  in  a  certain  sense 
through  determinate  deeds  or  acts,  and  so  a  complete 
or  incomplete  right  of  personality  came  and  went  by 


SUBSIDIARY  INHERENT  RIGHTS         355 

chance.  For  the  slaves  who  represented  the  greater  part 
of  the  human  race  were  not  persons.  They  acquired 
the  "status  libertatis"  or  incomplete  personality  by 
"manumissio,"  and  only  got  full  individuality  with  the 
possession  of  the  "status  libertatis  civitatis  et  familise." 
Freedom  came  and  went  by  chance,  which  governed  even 
the  position  of  the  individual  not  born  of  a  slave 
mother,  but  of  free  parents  in  marriage,  or  at  least  of  a 
free  mother.  The  chances  of  war  and  captivity  caused 
the  loss  of  personality,  and  the  "postliminium,"  which 
depended  on  chance,  revived  it.  Terrible,  long,  and 
bloody  were  the  struggles  undergone  and  suffered  from 
the  beginning  against  diverse  and  tenacious  forms  of 
slavery,  in  the  effort  to  extend  personality  to  an  always 
increasing  number  of  individuals,  and  to  complete  it 
in  those  already  called  free  subjects.  The  result  of  this 
struggle  has  been  a  series  of  victories  obtained  one  by 
one.  And  with  long  custom  and  heredity,  the  common 
consciousness  has  attained  a  conception  of  essential 
and  universal  rights.  Recently  enough  has  come  the 
declaration  of  the  rights  of  man,  for  even  since  the 
French  Revolution  there  are  found  in  the  codes  of 
European  nations  steps  towards  the  denial  of  the  right 
of  personality.  It  is  only  during  the  past  few  years 
that  freedom  is  not  among  us  a  cloak  for  the  protection 
of  usury.  And  but  lately  has  the  senseless  and  barbar- 
ous right  of  the  "jus  albinatus"  developed  into  its 
softened  and  useful  forms  of  a  system  of  reciprocity 
among  most  nations.  In  Italy  there  is  wise  legislation 
by  which  a  foreigner,  because  he  is  a  man,  is  permitted 
the  enjoyment  of  civil  rights. 

§  205.  Subsidiary  Inherent  Rights  in  the  Struggle  for 
Development.  The  other  inherent  rights  to  physical 
and  moral  life,  freedom,  and  equality  are  contained  in 
the  greater  right  of  personality,  even  imperfectly  thought 


356  INHERENT  RIGHTS 

of.  At  the  beginning,  these  faculties  were  acquired, 
accidental,  and  particular,  as  the  germ  from  which  they 
sprang;  that  is,  the  human  unit,  which  was  disregarded 
as  we  have  seen  by  the  ancient  State,  the  arbiter  of 
his  life  and  death.  By  chance,  he  was  born  free  or 
slave,  and  slaves  had  no  right  to  life,  limb,  or  good 
name.  Freemen  had  rights  if  their  nation  had  not  re- 
tained compulsory  military  service  or  if  the  father  was 
not  given  the  "jus  necis."  For  a  long  time,  it  was  not 
a  crime  to  kill  a  child.  The  right  to  physical  and 
moral  life,  therefore,  was  always  accidental,  here  acquired 
with  freedom,  and  there  with  citizenship,  belonging  to 
some  and  not  to  all.  In  respect  to  freedom  we  should 
recall  with  Hegel  that  in  the  Orient  the  despot  alone  was 
free,  and  that  in  the  ancient  world,  freedom  was 
restricted  to  a  portion  of  humanity  and  had  at  bottom 
a  political  character  and  was  always  freedom  in  or 
through  the  State.  Such  was  the  equality  which,  denied 
by  the  law  of  caste,  was  given  only  to  citizens.  From 
citizenship  in  an  ideal  state,  Aristotle  says,  farmers  and 
artizans  should  be  excluded,  because  excellence  is 
not  compatible  with  manual  labor.  The  conditions  of 
excellence,  and  here  we  mean  political  excellence,  are 
leisure,  and  therefore  the  true  components  of  the  city 
are  judges,  warriors,  priests,  and  counselors.  The  right 
to  freedom  and  equality  became  essential  and  common 
attributes  with  the  appearance  of  the  inherent  right  to 
physical  and  moral  life ;  that  is,  when  the  conception  of  the 
personal  unit,  after  many  struggles,  became  that  of  man. 
§  206.  Rights  not  Distinct  Abstractions,  but  Components 
of  Life.  The  intellectual  modern  philosopher  no  longer 
looks  upon  inherent  rights  from  an  abstract  point  of  view 
as  powers  of  the  individual  in  a  supposed  state  of  isola- 
tion without  correlation  to  duties,  but  connects  them, 
and  reproduces,  under  new  and  more  rational  forms,  the 


RIGHTS  COMPONENTS  OF  LIFE  357 

classical  doctrine  of  the  relation  of  ethics  and  politics. 
Our  juristic  philosophy  objects  to  formal  abstractions 
for  another  reason,  and  treats  inherent  rights  always  in 
relation  to  the  acquired  rights,  a  relation  based  on  the 
ideal  innate  in  nature,  life,  and  history.  If  law  is  a  human 
idea,  if  it  is  true  and  certain,  it  must  include  all  elements, 
essential  and  accidental,  universal  and  particular,  pri- 
mal and  acquired.  The  mind  begins  by  considering  it 
from  casual,  particular,  acquired,  or  temporary  aspects 
and  afterwards  comes  to  the  contemplation  of  its  neces- 
sary, universal,  primal,  or  eternal  characteristics.  Vico, 
therefore,  finds  fault  with  the  principles  of  natural  law 
and  with  Grotius,  Selden,  and  Puffendorf  for  having  be- 
gun the  teaching  of  its  theories,  not  from  the  time  in  which 
the  gens  began,  but  from  the  time  when  natural  reason  was 
first  fully  developed.  The  criticism  of  Vico  is  contrary 
to  the  teachings  of  Kant,  Rousseau,  all  the  representa- 
tives of  the  abstract  movement  of  natural  law,  many 
ancient  philosophers,  and  the  Roman  jurisconsults,  be- 
cause they  generalize  from  their  time  and  believe  all  that 
belongs  to  the  human  ego  is  primal.  Neither  can  modern 
thought  be  based  on  an  hypothesis  of  the  state  of  nature, 
so  contrary  to  the  conception  and  history  of  man,  whose 
development,  intellectual,  physical,  and  moral,  is  not 
possible  without  society.  The  idea  of  contract  as  the 
origin  of  the  State  and  of  society  is  not  primitive,  as  we 
have  said.1  Contract  that  has  for  its  object  the  exchange 
of  utilities  can  exist  or  not  exist;  law  and  the  State  must 
exist.  The  contract  which  would  establish  a  State  pre- 
supposes the  same  State  to  execute  and  enforce  it. 
Examine  with  critical  attention  the  French  Declaration 
of  the  Rights  of  Man,  made  in  1789  by  the  Constituent 
Assembly,  and  you  will  find  all  the  abstract  belief 
in  natural  law  bound  up  in  it.  It  speaks  of  rights 

lCf.  $  197  ante. 


358  INHERENT  RIGHTS 

anterior  to  society,  and  supposes  that  the  natural  man 
was  born  with  these  rights;  makes  no  mention  of  any 
duties,  but  admits  the  anarchical  right  of  resistance,  and 
confuses  the  will  of  the  majority  with  law,  enacting 
the  principles  of  Rousseau.  The  English  Bill  of  Rights 
of  1689,  and  the  American  Declaration  of  Independence 
do  not  lend  countenance  to  such  ideas,  but  sanction  his- 
torical rights  and  follow  the  feelings,  traditions,  and  cus- 
toms of  their  framers.  The  American  Declaration  of 
Independence,  however,  drawn  up  a  century  later  than 
the  English  Act,  shows  in  its  Preamble  some  influence  of 
the  dominant  philosophical  theories  of  the  XVIIIth  Cen- 
tury, though  these  do  not  alter  its  concrete,  historical 
character. 

§  207.  Italian  Philosophers  are  Opposed  to  the  Doctrine 
of  a  State  of  Nature.  In  Italy  Genovesi,  the  author  of 
"Diceosina,"  is  opposed  to  the  existence  of  a  state  of 
nature  and  cannot  imagine  natural  and  acquired 
rights  without  civil  society,  because  man  strives  for 
happiness,  for  which  law  is  instrumental,  and  happi- 
ness is  only  attainable  in  the  equilibrium  between 
individual  cupidity  and  the  social  sense,  an  equilib- 
rium obtainable  only  by  law,  which  protects  rights 
and  remedies  their  violations.  Spedalieri  in  his  book 
"I  Diritti  dell  'Uomo,"  even  better  than  Genovesi, 
before  the  abstract  movement  was  so  well  developed 
either  in  doctrine  or  practice,  made  a  careful  study  of  the 
state  of  nature  and  showed  clearly  that  it  had  never  ex- 
isted and  that  a  state  of  society  is  necessary  to  the  full 
corporeal  and  spiritual  development  of  man.  He  discards 
the  doctrine  of  contract  as  the  base  of  all  obligation,  be- 
cause there  are  obligations  derived  from  natural  facts, 
from  necessity,  the  synonym  of  reason,  and  not  from 
agreement,  and  he  enumerates  the  natural  rights  of 
man  as  those  which  look  to  life,  development,  and  prop- 


AN  EQUIVOCATION  359 

erty,  and  freedom  to  act  concerning  these  three  rights, 
freedom  of  thought,  and  the  use  of  force  in  self-defense. 
He  adds,  also,  the  right  to  the  aid  of  one's  fellows,  which  is 
but  a  limited  right,  except  in  cases  of  extreme  necessity. 
Natural  rights,  according  to  him,  owe  their  origin  and  use 
to  the  social  state,  and  can  only  by  a  fiction  exist  in  a 
state  of  solitude. 

§  208.  An  Equivocation,  the  Confusion  of  Status  and  Con- 
tract. Before  we  reach  the  end  of  this  chapter,  we  must 
state  an  equivocation.  Maine  has  said  that  the  progress  of 
law  consists  in  the  change  of  regime  from  status  to  con- 
tract. The  status  is  necessary,  superimposed,  coercive, 
and  can  well  be  considered  as  the  necessary  effect  of  the 
principle  of  community  of  primitive  times.  Spencer  enun- 
ciates this  theory  when  he  affirms  that  progress  consists 
in  the  advance  from  a  system  of  obligatory  or  military 
cooperation  to  one  that  is  industrial  or  voluntary. 
Fouillee,  with  the  same  premise,  places  the  specific  dif- 
ferences of  social  phenomena  in  degree  of  freedom  of  con- 
sent. The  equivocation  lies  in  confusing  two  distinct  con- 
ceptions, the  conception  of  individual  freedom  and  that 
of  contract,  as  the  source  of  all  ethico-juridical  rela- 
tions. Without  doubt,  the  emancipation  of  the  indi- 
vidual from  the  ancient  yoke  is  a  sign  of  progress,  but  it 
does  not  mean  that  the  moral  world  depends  upon  his  will 
and  is  his  arbitrary  creation.  There  are  many  relations 
and  institutions  not  in  the  least  dependent  upon  the  wills 
of  the  parties,  as  matrimony,  or  the  State.  These  are  not 
voluntary  in  the  sense  that  they  are  made  or  dissolved 
at  will,  though  such  relations  or  institutions  are  made 
by  the  agreement  of  individuals  in  the  sense  that  they 
can  marry  or  not,  or  enjoy  one  political  form  or  another. 
The  ability  to  contract  is  not  the  source  of  law  which  is 
partly  above  the  individual,  and  unaffected  by  his  con- 
tracts, although  it  demands  the  acknowledgment  and 


360  INHERENT  RIGHTS 

voluntary  obedience  of  the  individual  because  he  is  a 
factor  of  the  ethical  whole.  The  ability  to  contract,  there- 
fore, is  not  the  mark  of  the  social  fact,  in  all  its  integrity 
in  human  times,  and  a  fortiori  was  not  so  for  the  same 
reason  in  the  past,  which  was  dominated  by  the  rigorous 
regime  of  status. 


DIFFERENT  THEORIES  361 


CHAPTER  III 
INCORPOREAL  PERSONS 

THE  SCOPE  OF  INCORPOREAL  PERSONS.  —THE  THEORIES  OF 
FICTION  AND  OF  EQUIVALENCY.  —  THE  THEORY  THAT  LOOKS 
UPON  THE  INCORPOREAL  PERSON  AS  A  VEHICLE.— THE 
THEORY  OF  THE  COMPLEXITY  OF  RIGHTS  "SUI  JURIS."  —  THE 
IDEAS  OF  THE  GERMAN  PUBLICISTS.  —  THE  REAL  SUBJECT  IN 
A  CORPORATION  OR  FOUNDATION.  —  THE  RIGHTS  OF  THE  IN- 
CORPOREAL PERSONS  AND  THE  "JUS  CONFIRMANDI"  OF  THE 
STATE.  —  THEORY  OF  GIORGI. 

§  209.  Are  Incorporeal  Persons  Fictional  or  Real? 
Incorporeal  or  collective  persons  are  the  subject  of 
civil  rights  and  public  duties.  Instituted,  as  they  are,  for 
purposes  distinct  from  those  of  individuals,  in  extent  and 
length  of  life  they  exceed  the  latter's  power.  Is  the 
incorporeal  person  a  fiction  or  a  reality?  This  question 
is  studied  more  by  students  of  Roman  and  modern  civil 
law  than  by  philosophers  of  law.  Accurate  and  pro- 
found thoughts  on  this  theme,  however,  are  not  lacking 
in  the  works  of  Vico,  Hegel,  Rosmini,  and  Trendelen- 
burg,  as  we  shall  see,  but  they  do  not  contain  a  true 
philosophico-juristic  theory.  Ahrens  has  felt  the  need 
of  such  a  theory,  although  he  has  not  shown  whether  he 
thinks  incorporeal  persons  are  fictions  or  personifications 
by  the  State,  and  does  not  proceed  in  a  philosophical 
manner,  because  he  starts  out  with  a  presupposition. 

§  210.  Different  Theories  about  Incorporeal  Persons. 
Many  jurists  cannot  believe  in  the  real  existence  of 
incorporeal  persons,  because  they  think  that  reality 


362  INCORPOREAL  PERSONS 

connotes  only  the  individual  or  corporeal  person,  per- 
ceptible to  the  senses.  They  are  governed  by  the  same 
principle  as  the  Ionic  philosophers  and  the  Sophists;  — 
that  reality  lies  only  in  natural  and  phenomenal  objects. 
These  jurists  are  in  accord  with  the  phenomenalists  and 
conceptionalists  of  the  Middle  Ages,  since  they  admit  the 
reality  only  of  the  individual  -and  consider  the  universal 
as  a  name  or  as  a  simple  abstract  conception  without 
real  existence.  In  this  they  differ  from  the  positivists 
of  to-day,  who  state  that  the  conception  of  objects  was 
not  less  real  than  the  sensations  in  which  they  originated, 
and  who  have  no  scruple  in  regarding  incorporeal  persons 
as  existent  among  true  organic  entities.  Perhaps  the  posi- 
tivists go  too  far  in  making  the  ethical  organism  the  full 
equivalent  of  the  physical,  but  there  is  no  doubt  that  they 
look  upon  them  as  real  persons.  At  present  the  posi- 
tion of  the  jurists  resembles  that  of  the  great  masters 
of  the  orthodox  economic  school,  who  denied  that 
immaterial  products  had  a  real  value.  But  the  jurists 
are  less  logical  than  the  economists  because  they  recognize 
"res  incorporates"  and  admit  at  least  the  personal  reality 
of  the  State,  because  this  cannot  be  held  to  be  a  fiction. 
Savigny,  for  example,  who  does  not  believe  that  juridical 
persons  are  real,  says  that  the  State  is  the  corporeal  form 
of  a  spiritual  unit.  Those  economists  who  teach  that 
immaterial  products  have  no  real  value  follow  the  theory 
to  its  logical  conclusion  that  real  value  lies  only  in  the 
"res  corporales"  and  do  not  go  out  of  the  sphere  of 
mechanism  when  they  talk  about  the  supreme  incorporeal 
personality,  the  State.  We  must  remember  that  the 
classical  school  of  political  economy  looks  upon  the  State 
simply  as  the  means  for  the  protection  of  the  life  and 
goods  of  the  associated  individuals,  or  at  least  as  a 
mechanical  aid  for  the  attainment  of  human  ends,  to 
quote  Romagnosi,  and  never  as  a  person  with  attributes 
of  its  own. 


NON-EXISTENCE  IMPOSSIBLE  363 

§  211.  A  Contradiction.  Rights  without  Subjects. 
The  jurists  who  doubt  the  reality  of  the  incorporeal 
person  must  solve  the  great  contradiction  between  the 
rule  of  law,  which  requires  a  subject  for  a  right,  and 
the  incontestable  fact  of  some  combinations  of  capacities, 
which  would  in  their  theory  be  without  true  subjects. 
Many  of  them  try  to  eliminate  the  contradiction  by  call- 
ing the  reality  a  fictitious  and  artificial  subject,  others 
by  so  transforming  and  amplifying  the  idea  of  law  as 
to  create  the  possibility  of  a  right  without  a  subject.  All 
of  them  construct,  then,  the  doctrine  of  the  juridical 
person  with  the  gift  of  the  senses  and  with  the  mere 
abstract  virtue  of  thought,  because,  inasmuch  as  the 
subject  is  artificial  to  that  extent,  the  unions  of  rights 
without  a  subject  are  abstractions.  They  cannot  be 
otherwise  if  reality  lies  exclusively  in  material  objects. 

§  212.  Non-existence  of  Incorporeal  Persons  a  Logi- 
cal Impossibility.  Puchta  in  his  "Vorlesungen  iiber 
das  Heutige  Romische  Recht,"  Savigny  in  his 
"System  des  Heutigen  Romischen  Rechts,"  and 
Unger  in  his  "System  der  Oestreichischen  Almeinen 
Rechts,"  teach  that  incorporeal  persons  are  useful 
fictions  of  positive  law,  or  ideal  subjects  created 
by  the  State.  This  theory  falls  into  the  contradiction 
which  it  tries  to  avoid;  for,  on  one  hand,  there 
cannot  be  a  right  without  a  subject,  and  man  alone 
is  the  subject  of  rights;  on  the  other,  there  are  combi- 
nations of  rights  without  real  subjects.  Fictions  and 
personifications  will  not  do,  because,  by  imagining  the 
subject  or  creating  the  person,  we  recognize  that  there  is 
none,  while  there  must  necessarily  be  one.  So,  when  the 
theory  under  consideration  is  given  the  most  favorable 
interpretation,  and  we  say  that  the  juridical  person  is 
imaginary  or  artificial  only  in  respect  to  private  law, 
while  it  is  existent  and  undeniable  in  the  spiritual  com- 


364  INCORPOREAL  PERSONS 

munity,  as  universality,  and  a  subject  of  public  rights, 
the  contradiction  is  not  avoided,  because  the  collective 
person  of  public  law  is  always  in  private  law  a  fictitious 
individual  created  by  law,  and  the  imaginary  subject 
of  rights  of  ownership.  Private  law  cannot  consider  any 
other  subject  than  a  real  person.  Furthermore,  while  under 
this  theory  man  alone  is  the  subject  of  rights,  its  cham- 
pions must  finally  admit  that  rights  can  act  upon  a  subject 
which  is  not  a  natural  human  being.  An  incorpo- 
real person,  according  to  the  jurisconsults,  is  not  a 
de  facto  subject,  and  therefore  does  not  enter  into  the 
domain  of  fiction  in  its  proper  signification.  By  means 
of  a  fiction,  an  act  is  shown  in  connection  with  another 
act  juridically  regulated,  and  is  given  the  same  relation 
to  law  as  its  model  has.  Two  real  subjects  are  neces- 
sary to  a  fiction;  but  in  this  case  there  is  only  one, — the 
separate,  corporeal  person. 

§  213.  The  "Quid  Simile"  Theory  of  the  Incorporeal 
Person.  Randain  his  book  "Der  Besitz  nach  Oestreich- 
ischen  Rechts,"  Bohlau  in  his  work  on  the  subject 
of  law,  Bruns  in  his  article  in  the  "Encyklopadie"  of 
Holtzendorff  try  to  escape  the  contradiction  of  the 
theory  of  personification  by  saying  that  the  attributes 
not  belonging  to  individuals  should  not  be  attributed  to 
artificial  and  fictional  subjects,  although  they  should 
be  equal,  in  the  eyes  of  the  law,  to  the  individuals 
themselves.  Here  there  is  no  fictional  person,  but  a 
"quid  simile"  of  a  person,  which  exercises  its  functions 
and  has  its  place,  "personae  vice  fungitur."  But  the 
three  writers  cited  above  do  not  in  the  least  answer 
the  question ;  they  allege  the  fact  that  they  must  prove, 
that  is,  the  existence  of  property  and  rights  not  belong- 
ing to  any  physical  subject,  as  if  they  had  a  subject. 
Nor  is  the  much  feared  contradiction  avoided  by  the 
conception  of  property  without  an  owner,  because  this 


IHERING'S  THEORY  365 

destroys  the  well-known  principle  that  there  can  be 
no  right  without  a  subject.  And  further,  it  remains 
to  be  shown  what  is  the  "quid"  which  has  the  attri- 
butes of  a  person  without  being  a  person.  Evidently 
here  the  function  is  confused  with  the  fiction,  which  is 
the  object  of  such  abhorrence. 

§  214.  Ihering1  s  Theory  of  Individuals  as  Subject 
of  Rights.  Ihering,  in  his  "Geist  des  Romischen 
Rechts,"  fights  the  theory  of  personification  and 
assimilation  and  prepares  the  way  for  the  champions 
of  the  existence  of  private  rights  without  a  subject, 
denying  that  there  are  things  which  do  not  belong  to 
individuals  and  alleging  that  the  juridical  person  is  not 
the  subject  of  rights  but  a  simulacrum,  a  simple  mask, 
an  empty  form,  an  exterior  shape  invented  for  con- 
venience and  created  as  a  means  of  mediation.  The 
juridical  person  is  the  technical  means  of  developing 
juristic  relations  between  the  members  of  a  corpora- 
tion, or  those  interested  in  it,  and  strangers;  the  true 
subject  is  man,  the  efficient  subject  of  rights,  he  who 
enjoys  them.  In  a  corporation  or  association,  the  sub- 
jects are  those  who  enjoy  the  advantages  derived  from 
the  moral  being.  The  abstract  entity  does  not  enjoy 
them;  it  cannot  have,  therefore,  any  interest,  scope, 
or  rights.  Ihering  confuses  facts  and  rights.  It  is  one 
thing  to  see  who  has  a  right,  or  rather  who  enjoys  it, 
and  another  to  discover  the  subject  of  the  right  itself. 
Certainly  a  man  can  enjoy  the  advantages  growing 
out  of  wealth,  without  being  the  owner  and  disposer 
thereof.  The  citizens  of  a  commonwealth  and  the  sick 
are  not  the  owners  of  the  capital  of  the  community 
or  of  the  hospital,  although  they  reap  the  benefits.  In 
a  word,  it  is  always  necessary  to  distinguish  the  mate- 
rial enjoyment  from  the  ideal  enjoyment,  the  posses- 
sion from  the  ownership  of  rights,  since  one  can  have 


366  INCORPOREAL  PERSONS 

the  first  without  the  second;  but  Ihering  does  not  get 
away  completely  from  the  idea  of  personification,  since 
his  juridical  person  needs  an  apparent  subject  or  mask. 
He  founds  his  theory  (which  he  believes  concrete  and 
based  upon  the  strictest  realism)  on  an  abstraction, 
regarding  the  elements  entirely  by  themselves  and 
separate  from  their  natural  centre  of  adhesion. 

§  215.  The  Doctrine  of  Rights  without  a  Subject. 
Windscheid  and  Brinz,  in  their  "Lehrbuch  des  Pan- 
dekten,"  and  Bekker,  in  his  study  of  the  subject  of  rights, 
go  further  than  Ihering  and  combat  the  well-established 
principle  that  rights,  not  belonging  to  individuals,  must 
have  a  subject.  The  idea  of  law,  they  say  with  Demelius, 
in  "Die  Rechtsfiktion,"  is  abstract  in  dealing  with 
facts  and  particular  institutions;  if  the  existence  of  a 
combination  of  rights  without  a  subject  is  a  fact, 
we  must  conclude  that  the  idea  of  law  should  comprehend 
such  a  fact  and  contain  the  possibility  of  rights  without 
a  subject.  Windscheid  defines  a  right  as  an  impersonal 
capacity  of  will,  which  only  needs  a  subject  in  its  exer- 
cise to  become  real.  Brinz  distinguishes  wealth  belong- 
ing to  a  person  and  that  devoted  to  a  purpose,  laying 
stress  on  the  fact  and  leaving  the  fiction  once  for  all. 
Bekker  denies  that  the  will  is  the  subject;  in  his  mind, 
the  name  or  title  is  that  which  confers  upon  a  man 
the  free  disposition  of  a  right;  for  example,  the 
name  blacksmith  gives  a  man  a  blacksmith's  rights. 
To  this  theory  the  thought  is  opposed  at  once  that 
law  is  not  reducible  to  a  simple  mental  aggregation 
of  determinate  properties  separated  from  the  facts. 
There  is  in  such  a  theory,  as  in  every  other  universal 
conception,  a  series  of  necessary  elements  and  relations 
which  simple  experience  cannot  furnish  because  they  are 
by  nature  contingent  and  particular.  The  hypothetical 
basis  of  this  theory,  therefore,  is  erroneous,  and  equally 


THE  DOCTRINE  OF  RIGHTS  367 

erroneous  are  the  conceptions  which  arise  from  it.  The 
definition  of  a  right,  given  by  Windscheid,  is  not  correct, 
because  a  capacity  of  will  is  an  adherent  right  and 
impersonal  only  in  the  sense  that  it  can  be  attributed 
to  this  or  that  man,  but  not  in  the  sense  that  it  can 
separate  itself  absolutely  from  its  subject  and  become 
a  capacity  of  will,  a  power  without  a  subject,  to  exer- 
cise this  by  a  conception  without  content.  The  argu- 
ment of  analogy  from  the  case  of  a  child  has  no  weight, 
because  children  are  potentially  able  to  will.  If,  in 
this  case,  the  characteristics  are  found,  the  substance 
is  certainly  not  lacking,  but  the  impersonal  capac- 
ity to  will  does  not  exist,  and  therefore  it  must  repre- 
sent what  is  non-existent.  Neither  has  the  opinion  of 
Brinz  a  better  foundation,  because  the  idea  of  prop- 
erty rights  sui  juris,  independent  and  existent,  implies 
either  personification  of  them  or  the  object  from  which 
they  are  devolved.  The  essential  characteristic  of  prop- 
erty is  its  dependence  on  man.  It  consists  in  the 
sum  of  the  means  necessary  and  useful  for  the  attain- 
ment of  personal  development.  This  theory  is  an 
abstraction  which  leads  on  one  side  to  the  elevation  of 
the  inanimate,  to  the  status  of  a  juridical  subject,  and  on 
the  other,  debases  man  to  the  inanimate.  An  end  cannot 
be  self-attaining,  arising  from  property  without  a  subject, 
or  without  referring  to  one  in  a  manner  not  accidental, 
and  therefore  it  is  not  true  that  there  can  be  rights 
without  a  subject.  Bekker  proceeds  along  the  road  of 
indefinite  personification  of  animate  and  inanimate 
objects,  and  clearly  confuses  the  uncertain  subject  of  a 
right  with  its  object.  The  title  of  blacksmith  can  belong 
to  one  or  another  individual,  but  cannot  lack  a  subject. 
Nor  do  the  successive  possessors  of  an  office,  for  example, 
a  king,  form  a  juridical  person,  as  Kant  and  Windscheid 
say,  because  the  office  or  the  crown  have  no  will;  the 


368  INCORPOREAL  PERSONS 

true  subject  of  the  rights  in  that  case  is  the  State. 
Even  the  right  of  inheritance  is  not  a  juridical  person, 
for  the  possessor  or  subject  is  not  lacking,  but  only 
uncertain.  Here  we  must  remember  that  the  right  of 
the  heir,  who  enters,  is  considered  as  beginning  at  the 
moment  of  the  death  of  the  "de  cuius."  Neither  does  the 
appointment  of  a  trustee  show  the  presence  of  a  juridical 
person,  because  a  trustee  can  be  appointed  for  an  absent 
heir. 

§  216.  Wealth  Cannot  be  Subjective.  The  followers 
of  the  doctrine  of  which  we  speak  confess  some- 
times that  a  right  cannot  be  without  a  subject  be- 
cause a  right  is  subjective,  but  allege  that  it  is  not 
absurd  to  admit  of  corporate  or  associate  property 
rights  without  subjects  because  they  are  a  simple 
collection  and  objective  union.  They  add  that  this 
property,  as  a  subject,  is  not  a  mere  collection  of  things 
but  the  sum  of  them  made  one,  organized,  and  raised 
to  an  autonomous  unity  by  virtue  of  its  purpose 
or  the  unifying  will  which  dominates  it,  with  the  ap- 
proval of  the  State.  But  property  objectively  is  a 
part,  an  element,  and  not  unified  totality.  Above  all 
we  must  remember  that  there  is  not  the  slightest  devia- 
tion from  the  principle  of  the  doctrine  recognizing  that 
there  is  no  right  without  a  subject,  for  this  is  founded 
entirely  upon  the  opposite  conception.  In  the  second 
place,  we  must  observe  that  property  looked  upon  as  an 
organized  totality  cannot  be  looked  upon  as  a  subject 
of  the  unifying  principle  or  central  organic  force,  which 
is  purpose  or  will.  Purpose  and  will  rule  and  shape 
the  totality,  reduce  it  to  a  true  unity,  and  there- 
fore the  subject  should  be  found  in  such  factors.  Things 
are  things  and  form  objectivity;  purpose  and  will  by 
their  natures  belong  to  the  subjective  sphere.  Pur- 
pose is  the  limit  of  the  will  and  is  essentially  connected 


INCORPOREAL  PERSONS  EXISTENT      369 

with  it.  Purpose  can  be  defined  in  terms  of  will,  con- 
sequently the  subject  can  be  found  in  the  capacity  of 
will.  Purpose  cannot  be  attained  without  will,  and 
on  the  other  hand,  the  subject  can  only  be  will  if  it 
organizes  the  totality  of  things  with  regard  to  man 
and  makes  it  a  unit.  Property  cannot  be  conceived 
without  a  person  to  whom  it  belongs,  without  a  will  to 
which  it  can  be  united  and  by  which  it  is  animated. 
Property  is  a  personal  attribute  of  the  individual,  and 
a  person  can  never  be  an  attribute  of  property. 

§217.  Incorporeal  Persons  are  Existent.  The  jurists, 
who  do  not  believe  in  the  real  existence  only  of 
sensible  and  simple  objects,  are  disposed  to  believe,  as 
is  logical,  in  the  reality  of  incorporeal  persons.  The 
general  conviction  of  a  real  personality  in  the  State, 
which  is  seldom  considered  a  fictitious  entity,  the 
knowledge  that  the  theories  just  described  cannot  be 
applied  to  public  law,  the  ideas  of  philosophers 
about  the  State  itself  have  contributed  not  a  little 
to  the  awakening  and  full  development  of  this  belief. 
Vico  wrote  that  as  from  the  aggregation  of  bodies  called 
"comitia"  with  "coeundo"and  "comeundo"  has  come  the 
body  of  the  republic,  thus  from  the  unity  of  wills  has 
been  found  their  mind,  more  gracefully  defined  by 
Papinian  as  the  "communis  reipublicae  sponsio,"  or  the 
general  will  of  all  citizens  to  have  equal  rights.  The 
mind  of  this  will  is  civil  authority,  reason,  and  archi- 
tectural justice.  From  this  mind  and  spirit  is  derived 
civil  power,  which  makes  the  person  of  the  republic, 
whose  life  is  public  health,  which  comprehends  the  lives 
of  all  individuals.  The  great  Neapolitan  philosopher, 
to  whom  we  have  referred,  spoke  of  the  national  soul 
as  a  live  and  not  a  blind  form.  Veggasi  is  right 
in  saying,  as  many  others  have  also  said,  that  the  con- 
ception of  the  existence  of  incorporeal  persons,  and 


370  INCORPOREAL  PERSONS 

especially  of  the  real  personality  of  the  State,  owes  its 
origin  to  the  doctrine  of  Bluntschli  in  his  book"Deutsches 
Privatrecht."  In  Germany,  too, Schelling,  before  Blunt- 
schi,  raised  the  standard  of  ethical  ontology,  and  Hegel 
regarded  the  State  as  a  system  of  the  moral  world,  as 
an  auto-conscious  substance,  founding  it  on  the  reality 
of  the  universal  will,  which  is  the  sum  of  individual 
wills,  a  reality  very  different  from  that  of  the  Herbar- 
tian  Thilo.  But  at  first  we  must  notice  that  the  founder 
of  the  historical  school,  Savigny,  had  recognized  the 
actual  existence  of  the  greatest  of  incorporeal  persons, 
the  State,  in  spite  of  his  theory  of  personification.  After 
Schelling,  Hegel,  and  Savigny,  Trendelenburg  revived 
the  Greek  political  conception,  harmonizing  it  with  the 
principles  of  modern  times,  and  came  to  the  same  con- 
clusion, that  is,  to  the  recognition  of  the  State  as  a 
true  unit,  an  ethical  organism,  as  abstract  man  in  the 
particular  form  of  a  people.  In  Italy  philosophers 
of  law,  even  before  Bluntschli,  admitted  the  existence 
of  incorporeal  persons  in  treating  of  the  State  and  society. 
Romagnosi  often  spoke  of  the  State  as  a  perfect  and 
vital  interpenetration  of  the  individual  intellects, 
wills,  and  powers.  And  Rosmini,  without  distin- 
guishing society  from  a  moral  person,  distinguished  the 
internal  and  invisible  part,  which  forms  the  spirit  of 
society  itself,  and  the  external  visible  part,  which 
constitutes  its  mass.  Society  is  real  and  vital,  and 
because  real  and  vital  is  the  concurrence  of  the  wills, 
which  are  its  foundation. 

§  218.  A  New  Witt,  the  Resultant  of  the  Union  of  Two 
Wills.  Baron,  Beseler,  Lasson,  and  not  a  few  others 
in  Germany  agree  with  Bluntschli  on  the  existence  of  in- 
corporeal persons;  they  look  upon  the  State  and  moral 
entities  as  real  organisms,  efficient  subjects  of  public 
rights;  but  of  their  personality  in  private  law,  that  is,  of 


HIGHER  FORM  OF  EVOLUTION          371 

their  civil  capacity,  they  either  do  not  speak  or  else,  fol- 
lowing Savigny,  make  it  a  mere  fiction,  or  perhaps  a 
presupposition.  Zitelmann,  in  his  book  "Begriff  und 
Wesen  der  Sogenanten  Juristischen  Personen,"  states 
a  full  theory  applicable  to  private  and  public  law.  He 
essentially  conforms  to  philosophical  principles,  although 
he  does  not  speak  accurately,  and  uses  not  a  few  meta- 
phors and  similes.  He  starts  with  the  principle  of 
persona]  will,  in  which  rights  are  inherent,  and  admits  the 
reality  of  this  principle  in  juridical  persons  as  well  as  in 
individuals.  By  being  subject  of  rights,  the  juridical 
person  acquires  a  potential  or  actual  capacity  to  will; 
that  is,  personality,  which  should  be  recognized  by  the 
State.  The  result,  therefore,  is  that  the  personality  of 
the  entity  is  not  a  creation  of  the  statutes,  as  some 
believe,  but  of  the  union  of  many  wills  considered,  not 
in  their  integrity  but  in  their  reference  to  a  definite 
purpose,  creating  a  new,  general,  and  efficient  will,  which 
is  the  natural  basis  of  a  corporation.  Here  happens  what 
is  always  observed,  to  quote  Zitelmann;  that  is,  that 
when  two  forces  are  associated  by  a  unifying  third,  the 
two  forces  lose  their  individual  existence  and  form  a  new 
force  with  the  common  properties  of  its  components. 
In  law  there  is  the  example  of  the  "universitas  bono- 
rum,"  which  has  its  power  as  a  unity  distinct  from  the 
separate  elements  composing  it. 

§  219.  This  New  Force  is  a  Higher  Form  of  Evolution. 
We  can  add  to  what  our  author  says,  that  if  the  cor- 
poration is  an  intimate  concurrence  of  many  wills  for 
a  given  end,  and  if  it  is  a  totality  or  ethical  organism,  it 
is,  in  a  certain  aspect,  more  real  than  the  individuals, 
because  it  possesses  greater  complexity  of  parts  and  repre- 
sents a  higher  form  of  evolution.  Without  human  life 
and  the  various  social  nuclei,  the  individual  is  an  abstrac- 
tion. Mass  and,  therefore,  true  reality,  are  found  in 


372  INCORPOREAL  PERSONS 

organic  compositions,  in  communities,  in  the  centre  of 
the  union  of  parts  whose  existence  have  their  significa- 
tion through  the  existence  of  the  whole.  Nevertheless, 
the  parts  of  the  ethical  organism  are  free  and  individual 
entities,  and  besides  being  subordinate  participants  in 
the  life  of  the  whole,  have  their  own  lives  and  appro- 
priate ends.  An  association  is  a  special  ethical  organism 
consisting  of  an  entity  entirely  distinct  from  the  indi- 
viduals and  bringing  about  results  which  are  of  an  imme- 
diate advantage  to  it.  The  unity  is  not  an  abstract 
entity  incapable  of  enjoyment,  as  Ihering  thinks,  but 
is  a  real  and  single  power  which  arises  from  the  profound 
interpenetration  of  many  wills. 

§  220.  A  Corporation  Must  be  an  Organism.  Zitel- 
mann  does  not  and  cannot  show  clearly  the  real  per- 
sonality of  a  corporation  unless  it  is  an  ethical  organism 
derived  from  the  interpenetration  of  the  component 
wills.  Its  essence  lies  in  the  irrevocable  act,  and  in  the 
recognition  by  the  State  by  which  a  juridical  subject 
consecrates  some  of  its  capacities  or  all  its  wealth  to  a 
definite  purpose.  They  err  who  think  that  the  union 
or  association  of  many  persons  to  follow  one  another  in 
succession  for  the  attainment  of  an  end  is  an  ethical 
organism,  for,  though  such  persons  in  their  quality  of 
agents  have  more  power  than  as  individuals,  they  do 
not  constitute  the  more  substantial  elements  of  the 
institution.  A  priest,  for  example,  is  not,  in  respect  to 
the  benefice  which  he  enjoys,  a  member  of  an  organic 
series  of  priests,  his  predecessors  and  possible  successors, 
established  by  a  determined  act  of  the*  Church  and  having 
a  quality  of  subjection  to  rights,  but  he  is  simply  agent, 
a  method  by  which  the  person  can  exist.  The  idea  of 
association  is  spontaneously  connected  with  that  of  the 
founder  whose  act  the  association  is,  and  therefore  the 
necessity  arises  to  distinguish  in  our  definition  this 


A  CORPORATION  AN  ORGANISM         373 

similarity,  and  to  lay  emphasis  upon  the  secondary  or 
perhaps  accidental  elements.  The  act  of  foundation  is  the 
very  will  of  the  founder  become  objective,  concrete,  and 
irrevocable,  developing  along  its  own  lines,  and  is  the 
subject  of  rights  contained  in  the  institution  itself,  and 
therefore  the  natural  origin  of  the  personality  that  the 
State  recognizes.  But  this  will,  although  separated 
from  the  person  and  become  objective,  is  fundamentally 
subjective  and  personal.  It  is  an  act  distinct  from  the 
power,  though  not  conceivable  without  it,  suitable  to 
give  form,  quality,  and  coordination  to  the  association. 
The  determinate  will  in  such  form  has  nothing  in  com- 
mon with  the  impersonal  will  of  Windscheid,  who  dis- 
tinguishes the  subject  only  by  the  exercise  of  its  rights, 
and  not  by  its  essence.  Neither  should  it  be  confused 
with  the  purpose  without  subject,  the  conception  of 
Brinz,  because  the  purpose  for  which  the  powers  are 
given  is  subsequent  to  the  will  of  the  founder,  and  is  the 
termination  of  the  volitive  act  of  the  person,  and  pre- 
supposes the  will,  and  the  volitive  subject  which  renders 
objective  an  act  suitable  to  the  end  desired.  Here  there 
is  a  case  of  the  decomposition  of  the  empirical  ego,  of 
the  ego  consisting  of  successive  growth ;  in  other  words, 
the  integration  of  concrete  subjectivity.  The  empirical 
ego  can  be  distinguished  from  diverse  particular  egos. 
This  is  possible  under  normal  and  pathological  condi- 
tions. There  were  two  egos  in  Manlius  Torquatus, 
when  he  said  to  his  son,  "As  your  father,  I  praise  you, 
but  as  your  captain,  I  am  going  to  condemn  you  to 
death."  Psychologically,  a  plurality  of  persons  is  pos- 
sible in  the  same  subject;  and  juridically,  an  individual 
can  have  even  more  personalities.  This  is  the  reason 
why  it  is  not  a  self-contradiction  to  raise  the  act  of  will 
or  the  will  in  respect  to  a  single  and  fixed  purpose  to  the 
grade  of  a  subject  or  individual.  In  conclusion  we  can 


374  INCORPOREAL  PERSONS 

say  that  if  the  institution  is  not  made  an  ethical  organism 
by  incorporation,  it  at  least  comprehends  the  same 
principle  and  personality,  and  therefore  the  capacity 
to  will.  In  corporations  the  subject  is  the  new  and  single 
will  which  is  born  from  the  interpenetration  of  many 
wills;  in  unincorporated  associations  the  subject  is 
the  will  become  objective  by  the  act  of  the  same  will 
of  the  founder.  There  are  some  institutions  that  are 
equinumerant  to  the  wills  although  the  latter  are 
resolved  in  them.  Here  comes  a  peculiar  difference 
between  a  corporation  and  an  association. 

§  221.  Incorporation.  The  theory  stated  is  deduced 
as  a  corollary  from  what  we  have  already  said,  from 
a  fundamental  principle  of  the  philosophy  of  law; 
the  person  consists  really  in  the  capacity  to  will.  Now 
this  capacity  is  found  both  in  corporations  and  as- 
sociations. In  the  former,  it  is  one  with  the  new 
and  distinct  unity  growing  from  the  interpenetration 
of  many  wills;  in  the  second,  it  is  the  same  as  the 
will  of  the  founder  become  objective  in  a  single  pur- 
pose. The  incorporeal  person  is  raised  to  the  equal 
of  the  juridical  and  civil  subject  by  the  State  after  its 
social  advantages  are  recognized,  and  has  property  rights 
and  sometimes  political  rights  and  powers  of  guardianship. 
It  has  rights  of  property,  "jura  in  re  aliena,"  rights  of 
possession,  contract,  and  testamentary  succession.  It 
lacks,  however,  a  right  to  delegate,  and  is  in  a  condition 
analogous  to  that  of  a  minor,  hence  its  representative 
government.  The  State  does  not  create  but  only  registers 
incorporeal  persons,  because  legal  authorization  deals 
with  the  preexistent  personality  of  the  moral  body;  that 
is,  of  the  capacity  to  will.  Where  this  is  lacking,  there 
cannot  be  any  grounds  for  authorization.  Creation  is 
synonymous  to  existence  of  the  fictitious  person  or 
personification,  and  is  as  absurd  as  either  of  them. 


QUESTION  OF  REALITY  375 

In  fact,  it  amounts  to  the  same  thing.  It  is  strange 
that  Savigny  teaches  that  juridical  persons  have  not 
their  origin  and  end  in  the  State,  while  they  have,  in 
his  mind,  an  artificial  existence.  If  juridical  persons 
are  fictitious  or  artificial,  it  is  not  possible  to  deny  that 
they  owe  their  existence  and  dissolution  to  positive 
law.  The  State  registers  not  only  the  existence  of  incor- 
poreal persons,  but  first  examines  the  question  of  the  so- 
cial utility  to  be  derived  from  the  institution  of  the 
moral  entity,  and  then  recognizes  and  raises  it  to  the  state 
of  a  simple  subject,  watching  and  controlling  it.  The 
law  of  the  State  is  a  "jus  confirmandi,"  and  if  it  is  to  be 
called  a  "jus  constituendi,"  the  notion  of  creations 
must  be  abandoned  and  only  that  of  an  elevation  of 
an  initial  person  to  a  juristic  person  relied  on.  We 
understand  that  the  State  has  the  powers  of  taking 
away  from  moral  entities  already  constituted  the 
capacity  that  it  has  given  them  when  their  existence  is 
no  longer  justified  or  when  they  run  contrary  to  the 
ends  of  civilization  and  social  utility. 

§  222.  Incorporation  Does  not  Affect  Question  of 
Reality  of  Association.  Giorgi,  in  "La  Dottrina  delle 
Persone  Giuridiche,"  has  severely  criticized  the  opinions 
of  various  writers  on  this  subject,  expressing  a  theory 
of  his  own  that  completes  to  his  satisfaction  those 
of  Bluntschli, Baron,  Lasson,  and  Beseler.  He  accepts 
the  way  in  which  they  consider  the  State  and  collective 
entities,  but  considers  it  defective  as  to  associations. 
According  to  Giorgi,  associations  have  substantially 
the  same  real  essence  as  corporations,  that  is,  an 
existent  collectivity,  and  therefore  cannot  be  reduced 
to  a  fictitious  personality.  This  conception  had  been 
developed  by  Fisichella,  in  his  book  "Sulla  Realta 
delle  Persone  Giuridiche,"  as  Giorgi  frankly  confesses. 
The  whole  reasoning  in  aid  of  this  thesis  can  be  out- 


376  INCORPOREAL  PERSONS 

lined  thus :  The  wealth  of  an  association  comes  from  the 
people;  it  is  intended  for  the  accomplishment  of  general 
duties,  and  is  given  to  the  people  as  its  true  owner.  The 
assignment  to  a  board  of  managers  of  a  separate  fund, 
department,  or  particular  branch  gives  it  a  single  and 
autonomous  being  but  does  not  change  the  subject.  It 
multiplies  only  juristically  and  administratively  the  col- 
lective personality,  in  other  words  the  people,  with  the 
meaning  either  of  the  whole  political  aggregate  or  its 
subdivisions  by  local  boundaries  for  administrative  rea- 
sons. Two  methods  can  be  followed  by  the  sovereign 
power  for  the  satisfaction  of  social  needs ;  it  can  provide 
directly  with  a  simple  and  undivided  exchequer,  or  it  can 
dismember  this  in  many  parts,  conferring  on  each  an  au- 
tonomous individuality,  and  make  it  proportionate  to 
the  needs  for  the  attainment  of  this  or  that  other  end, 
hence  moral  entities  and  associations. 

§  223.  More  Contradictions  in  Distinguishing  Corpor- 
ations and  Associations.  The  doctrine  stated  is  in  con- 
tradiction to  the  principle  with  which  the  author  started 
out.  To  his  mind  it  is  ridiculous  and  metaphoric  to 
assimilate  society  to  an  organism:  for  example,  such 
expressions  as  "the  social  organ,"  "the  social  body," 
"the  social  will,"  "the  social  or  national  soul."  Society 
is  the  mere  aggregation  of  individuals,  a  simple  collec- 
tivity, which  cannot  be  conceived  as  an  entity  or 
organic  unit.  Giorgi  declares  specifically  that  society 
is  nothing  but  a  collective  entity  and  indirect  means 
for  the  satisfaction  of  individual  interests,  and  therefore 
must  fall  in  line  with  the  atomic  theory.  But  if  society 
is  not  a  spirit  or  consciousness  and  will,  and  if  it  is  a 
collective  entity  and  nothing  else,  how  can  it  have  its 
own  exclusive,  so  called,  public  rights?  How  can  Giorgi 
agree  with  the  ideas  of  the  German  writers  on  public 
law  who  regard  the  State  as  an  organism,  if  he  says 


GIORGI'S  THEORY  377 

in  so  many  words  that  this  belief  is  an  untrue  and 
ridiculous  metaphor?  Giorgi  states  that  man  alone  being 
capable  of  duties,  he  is,  therefore,  the  only  possible 
subject  of  rights,  which  presuppose  duties,  which  in 
their  turn  demand  consciousness,  will,  and  responsibility. 
The  human  community  has  not  a  psyche,  and  therefore 
cannot  have  duties  nor  rights  of  any  kind  whatsoever, 
exclusively  its  own.  Further,  we  should  observe  that 
Bluntschli,  Baron,  Beseler,  Lasson,  and  the  others  tend 
to  make  the  principle  of  public  law  the  base  of  the  juris- 
tical personality  of  moral  entities,  and  therefore  are  reso- 
lute in  their  denial  that  commercial  associations  founded 
for  private  gain  are  juridical  persons,  excluding  every 
entity  which  has  a  private  character.  The  same  cannot 
be  said  of  Giorgi,  who  says  that  he  bases  his  reasoning 
on  the  principles  of  these  writers,  and  yet  holds  with 
ponderous  arguments  that  the  commercial  associations 
are  true  juridical  persons. 

§  224.  The  Members  Cannot  be  the  Subject  of  Corporate 
or  Associate  Rights,  Giorgi' s  Theory.  According  to  Giorgi, 
the  subjectivity  of  corporations  and  associations  lies  in 
the  existent  collectivity.  Fixing  our  attention  for  a 
moment  on  this  collectivity  as  the  subject  of  the 
rights  of  corporations,  we  must  remember  that  it  is 
not  intended  in  the  sense  that  Bolze  and  Ihering 
use  it;  according  to  Giorgi  himself,  collectivity  can- 
not be  considered  as  plurality  in  order  that  we  may 
attribute  to  individuals  the  rights  of  the  juridical  person, 
and  no  longer  need  to  recognize  that  subject  separate 
from  them.  This  would  be  making  a  juridical  person. 
Neither  can  we  understand  it  as  essentially  one  with  its 
separate  members,  even  though  they  have  interests  in  it 
and  enjoy  it,  because  it  is  one  thing  to  define  the  subject 
of  rights  and  another  to  determine  the  question  of  the 
enjoyment  of  the  advantages  connected  with  it.  If 


378  INCORPOREAL  PERSONS 

collectivity  cannot  be  defined  in  one  way  or  the  other, 
we  must  abandon  once  for  all  the  instrumental  point 
of  view,  and  consider  the  community  as  an  organic 
unity,  and  come  to  the  theory  of  Zitelmann,  at  least 
in  its  essential  particulars.  Collectivity,  however,  as 
an  organic  unity,  is  not  simple  collectivity,  but  some- 
thing more  than  that.  It  is  the  single  will  which  arises 
from  the  interpenetration  of  individual  wills,  of  which 
we  have  spoken  before.1  This  will  is  a  new  vital  and 
distinct  principle  very  different  from  the  unity  which 
an  arithmetical  formula  expresses.  The  common  will 
has  nothing  to  do  with  the  7+5=12,  and  therefore 
with  Zitelmann's  erroneous  example,  but  Giorgi  does  not 
believe  in  this  theory  of  will,  which  is  inconsistent  with 
the  operation  of  nature,  he  says,  in  separating  the  will 
from  the  individual,  and  in  making  will  the  essential  in  law, 
and  man  but  a  "quid  superfluum."  But  this  theory,  to 
tell  the  truth,  is  not  inconsistent  and  does  not  presuppose 
the  separate  existence  of  will.  In  ethics  and  law  man  is 
considered  only  as  will  and  not  as  a  simple  theoretical 
mind  or  phantasy.  Mind  and  phantasy  are  activities 
which  ethics  and  law  regard  only  in  so  much  as  they  are 
comprehended  in  will.  Is  it  not  possible  that  both  of 
them  enter  into  practical  reason?  Reason  is  called  prac- 
tical when  it  has  for  its  object  the  welfare  which  is  the 
end  of  will.  Will  is  not  accessory  in  those  sciences  but 
is  essential,  even  as  man,  the  subject  of  will,  is  essential. 
If  the  conception  of  will  without  man  is  impossible, 
equally  impossible  is  that  of  man  without  will.  On  this 
account,  we  have  not  subscribed  to  Windscheid's  theory 
of  the  impersonal  will,  and  have  said  that  a  capacity  of 
will  without  a  volitive  subject  is  an  impossible  concep- 
tion. If  a  corporation  is  an  organic  and  not  an  instru- 
mental unit,  the  subject  of  the  rights  must  be  found  in 

lCf.  §  221  ante. 


GIORGI'S  THEORY  379 

the  fusion  of  individual  wills,  in  a  single  general  will. 
Social  man  is  possible  to  the  extent  that  he  admits  of  that 
fusion.  Both  in  the  particular  and  general  will  is  found 
all  human  nature  considered  as  the  subject  of  ethics.  It 
is  not  true,  therefore,  that  under  the  theory  of  the  will 
man  takes  the  part  of  a  "quid  superfluum." 

§  225.  Giorgi' s  Theory  Criticized.  In  associations  the 
will  is  not  separated  from  man  in  the  true  sense 
of  the  word  because  it  is  derived  from  the  founder 
and  conserves  his  character  and  continues  his  person- 
ality in  a  particular  form.  In  the  act  of  associa- 
tion there  is  a  relation  not  belonging  to  the  will 
of  the  man,  and  this  relation,  become  permanent,  is 
the  base  of  that  multifold  personality  which  a  man  can 
assume  in  the  eyes  of  the  law  corresponding  to  the 
plurality  of  the  empirical  ego  admitted  in  psychology, 
as  we  have  said  before.1  The  will  of  the  founder  is 
an  empirical  ego,  a  derivative  personality,  more  than  a 
mere  transitory  act  of  the  mind.  In  law  there  is  no 
contradiction  in  the  existence  of  various  personalities 
in  a  human  individual,  although  there  be  but  one  sub- 
stantial personality,  as  in  psychology  the  formation 
of  various  empirical  consciousnesses  does  not  include 
the  necessity  of  an  original  and  primitive  act  of  dis- 
tinction between  the  ego  and  non-ego.  With  this 
premise  let  us  examine  the  theory  of  Giorgi,  which 
makes  the  subject  of  the  rights  of  the  association  the 
entire  human  community,  the  people  as  formed  by  the 
State.  To  us  it  seems  that  his  theory  is  not  tenable, 
because  it  has  the  same  vice  as  the  repudiated  doctrine 
of  Ihering.  Giorgi  also  confuses  law  with  fact,  because, 
though  associations  are  useful  to  society  and  their 
institution  of  important  social  interest,  it  does  not  fol- 
low that  society  should  be  their  subject.  The  poor  and 
1  Cf.  §  220  ante. 


380  INCORPOREAL  PERSONS 

the  sick  get  many  advantages  from  charitable  institu- 
tions, and  yet  they  are  not  owners  of  the  endowments. 
Logically  from  this  premise  every  individual  right  in 
the  last  analysis  should  belong  to  the  State,  because 
from  every  right  society  gets  some  advantage.  Every 
individual  right  in  a  certain  aspect  is  a  social  interest 
and  therefore  should  be  given  to  the  State;  a  "reductio 
ad  absurdum." 

§  226.  The  Basis  of  the  Criticism  of  Giorgi' s  Theory. 
Giorgi  made  the  mistake  of  considering  associations 
only  in  regard  to  their  object  and  in  paying  no  atten- 
tion to  their  origin  and  the  right  of  those  who  founded 
them.  The  error  of  his  theory  becomes  luminous  when 
one  tries  to  apply  it  to  juridical  persons  which  have  a 
purpose  of  markedly  private  interest.  The  fact  that 
the  State  has  a  right  to  authorize  and  destroy  moral 
entities  on  the  ground  of  social  order,  does  not 
show  that  they  are  departments  of  the  State  and  are 
not  separate  from  it.  Giorgi  confuses  a  division  of 
administrative  control  with  the  formation  of  a  new 
entity,  as  Bonelli  observes  in  his  work,  "Di  una  Nuova 
Teorica  della  Personalita  Giuridica."  Now  to  sub- 
divide the  administration  and  departments  of  associa- 
tion into  many  branches,  and  to  confer  upon  one  part 
juridical  personality,  are  two  different  things.  A  private 
individual  divides  his  administration  into  many  branches 
with  separate  treasurers  and  agents.  In  such  case, 
however,  there  is  not  an  equal  number  of  juridical 
persons.  The  juridical  personality  arises  when  the  por- 
tion of  the  "corpus"  thus  separated  becomes  juridically 
independent  of  the  rest,  so  that  all  the  juristic  relations 
into  which  it  enters  concern  it  alone.  The  juridical 
person  is  an  autonomous  unit  entirely  separate  from  any 
other  unit.  As  long  as  a  department,  Bonelli  says, 
destined  for  some  public  service,  continues  to  be  in  the 


GIORGI'S  THEORY  381 

control  of  the  State,  no  new  personality  appears,  and 
such  division  has  an  exclusively  administrative  value. 
To  make  a  department  a  juridical  person  signifies  that 
in  regard  to  private  law  it  no  longer  belongs  to  the  State. 
There  must  be  a  true  and  real  change  of  owners  made, 
and  the  new  relations  will  have  the  new  and  not  the  old 
owner  for  their  subject.  Giorgi  does  not  see  that  if 
the  old  subject  remains  the  new  one  cannot  be  born. 
The  existence  of  the  old  and  the  new  subject  at  the 
same  time  is  impossible. 


382     METHODS  OF  ACQUIRING  PROPERTY 


CHAPTER   IV 

PROPERTY  AND  THE  METHODS  OF 
ACQUIRING  IT 

PROPERTY  AND  ITS  RATIONAL  BASIS. —  DOCTRINES  DEALING 
WITH  THIS  BASIS.  —  LIMITATIONS  AND  CONTROL  OF  PROPERTY. 
—  ORIGINAL  AND  DERIVATIVE  METHODS  OF  ACQUISITION. 

§  227.  Fundamental  Bases  of  Rights  of  Property. 
Man  must  attain  his  ultimate  end,  and  therefore  he 
expands  his  activity  and  binds  and  subjects  to  himself 
external  things  and  makes  agreements  with  other  men 
for  the  reciprocal  preservation  of  necessary  and  useful 
objects.  From  the  expansion  of  his  personal  activity 
are  derived  property  and  personal  rights;  the  first 
having  to  do  with  the  relations  between  man  and  things 
and  referring  mediately  to  other  persons  inasmuch  as 
they  have  a  duty  to  respect  these  rights  and  sometimes 
a  power  to  limit  them,  the  second  dealing  with  the  rela- 
tions between  man  and  man  and  acting  only  indirectly 
on  things,  containing  all  obligations  reducible  to  an  agree- 
ment or  promise.  This  distinction  of  rights  is  not 
opposed,  as  can  be  seen,  to  the  principle  that  a  person 
is  the  conscious  subject  of  a  right.  Furthermore, 
the  union  of  property  and  personal  rights  constitutes 
the  estate  which  is  the  total  of  the  extrinsic  material  and 
spiritual  property  created  by  a  person  for  himself. 
Property  rights  comprehend  property  and  one's  rights 
over  the  possessions  of  others;  personal  rights  are  con- 
cerned with  obligations  of  an  economic  or  financial 
value.  Whence  it  follows  that  the  estate  is  composed 


THE  GREATEST  PROPERTY  RIGHTS     383 

of    all     these    elements,     some    corporeal    and     some 
incorporeal. 

§  228.  The  Greatest  Property  Rights.  Property  is 
the  greatest  right,  the  "plena  potestas  in  re."  It 
is  a  general  if  not  absolute  power  over  objects,  and 
at  least  it  comprehends  the  greatest  number  of  rights, 
including  possession,  acquisition,  enjoyment,  and  dis- 
position. Enjoyment  implies  the  possession  and  use 
of  the  fruits;  disposition  embraces  transformation 
and  alienation.  Fundamentally  property  is  nothing 
more  or  less  than  freedom  applied  to  things,  as 
freedom  in  the  last  analysis  can  be  reduced  to  self- 
ownership.  These  two  conceptions  interpenetrate  and 
are  convertible  because  property  is  the  dress  and 
investiture  of  individuals  and  is  as  inviolable  as  the 
person.  Hegel  says  that  a  person  has  his  external  ex- 
istence in  property.  Through  property  it  comes  about 
that  things  have  no  other  signification  than  to  create 
the  reality  or  manifestation  of  free  will.  Trendelen- 
burg  looks  upon  property  as  a  victory  of  mind  over 
matter,  as  the  instrument  of  the  person.  Things,  in 
the  power  of  man,  become  animated  means  for  the 
purposes  which  they  may  serve,  and,  ceasing  to  be 
impersonal,  represent  the  determination  of  will.  In 
property  we  extend  the  conception  of  an  organ  to 
external  things,  and  we  feel  ourselves  in  it,  as  in  our 
own  members.  Rosmini  asserts  that  the  common  char- 
acter of  all  property  is  due  to  the  connection  of  an 
object  with  the  personal  principle.  The  connection  is 
duplicate,  both  physical  and  moral.  He  further  says 
that  the  concrete  connection  has  in  the  suitability  of  its 
occupancy  for  the  attainment  of  some  end,  and  that  the 
moral  connection  is  shown  by  the  act  of  intellect  by 
which  we  conceive  a  thing  as  useful  to  us,  free  and  such 
as  can  be  occupied,  and  by  the  act  of  will  which 


384     METHODS  OF  ACQUIRING  PROPERTY 

attempts  to  take  it  juridically  and  sets  in  motion  the 
forces  suitable  to  take  and  keep  it.  Concrete  con- 
nection comes  from  the  nature  of  the  subject,  which 
seeks  its  own  good  in  things.  Moral  connection 
comes  from  the  nature  of  the  object,  which  seems  open 
and  free  to  occupancy.  Concrete  connection  is  the 
material  of  the  right ;  the  form  lies  in  the  moral  connection 
with  the  loss  of  which  one  loses  the  right  itself,  as  the 
jurisconsults  have  shown  when  they  said  "possessio 
animo  et  corpore  adquiritur."  Rosmini,  Trendelenburg, 
Cousin,  and  Thiers  all  agree  in  admitting  two  kinds 
of  property,  one  natural  and  the  other  acquired.  Man 
has  a  primal  property  in  his  person  and  powers. 
The  "mine"  here  is  primal  and  original  property,  the 
root  and  model  of  all  others.  From  it  all  the  others  are 
derived,  and  are  simple  applications  and  developments 
of  it.  Our  body  belongs  to  us  only  as  the  home  and 
instrument  of  our  personality,  and  is  our  next  most 
closely  connected  property.  Man  has  a  second  property, 
less  closely  bound  to  his  existence  but  not  less  legiti- 
mate, in  the  products  of  his  powers. 

§  229.  Philosophy  of  Property.  Property  is  the 
expression  of  a  practical  synthetic  judgment  a  priori. 
We  know  that  Kant  was  the  first  to  admit  in  theoreti- 
cal philosophy  the  synthetic  a  priori  judgment  in  which 
the  subject  is  an  intuition  or  sensual  element,  and  the 
predicate  is  a  category  or  an  element  pure,  intelligible, 
and  original,  not,  therefore,  a  derivative  of  experience 
or  the  outside  world,  but  of  the  intrinsic  activity  of 
the  intellect  or  mind.  It  is  not  the  unity  of  two 
conceptions,  but  of  an  intuition  and  a  category,  and 
makes  the  conception  because  the  subject,  a  sensual 
element,  is  transfigured  and  made  intellectual  in  the 
act  of  uniting  with  the  predicate.  A  category  is  not 
an  innate  idea  immutable  and  in  the  mind  from  the 


THEORY  OF  GROT  I  US  385 

first,  but  a  method  or  function,  and  thus  is  the  original 
a  priori  element  derived  from  the  depths  of  the  mind. 
Now  property  expresses  a  practical  synthetic  judgment 
a  priori  in  as  far  as  the  thing  or  eudemonological  term  is 
reduced  to  a  personal  predicate.  "Meum,"  "teum,"  and 
"suum"  are  predicates  of  this  kind  which  show  the  ac- 
tivity of  the  person  and  the  substance  of  the  will.  A 
person  is  original  since  it  is  not  an  external  production 
and  does  not  come  from  without,  but  at  the  same  time  is 
not  at  the  beginning  all  that  it  should  be,  and  is  less 
than  its  full  conception.  However,  it  attains  this  con- 
ception through  its  energy,  which  develops  in  society. 
And  here  we  see  that  the  act  of  appropriation  of  the  mind 
begins  before  the  practical  synthetic  judgment  a  priori. 
It  shows  in  theoretical  judgment  because  to  judge  is  to 
reduce  the  variety  of  objects  presented  to  the  unity  of 
knowledge.  It  is  to  know,  comprehend,  and  cognize 
what  it  feels,  and  to  make  it  a  property  of  the  mind.  The 
act  of  appropriation  and  theoretical  judgment  has  only 
a  cognitive  value,  while  in  a  practical  judgment  it  has 
an  ethical  significance. 

§  230.  History  of  Property  —  the  Theory  of  Grotius. 
Diverse  are  the  opinions  about  the  rational  basis  of 
property.  Grotius  states  that  private  property,  succeed- 
ing to  the  "communio  bonorum  primseva,"  descends  from 
the  occupancy  and  partition  of  land.  Occupancy  presup- 
poses a  tacit  agreement,  and  partition  an  express  con- 
tract. In  his  opinion  private  property  is  based  upon  the 
consensus  of  the  components  of  society.  In  the  begin- 
ing  property  was  common  to  all  the  human  species,  and 
later  to  a  people  or  family.  When  through  determinate 
forces  private  ownership  came  into  existence,  there  was 
no  division  of  the  common  possessions,  and  by  general 
consent  each  man  kept  what  he  had.  The  theory  of 
Grotius  confuses  the  rational  basis  of  property  with  its 


386     METHODS  OF  ACQUIRING  PROPERTY 

historical  origin.  The  basis  of  the  property  right  must 
be  an  idea,  a  principle  and  not  simply  a  fact,  as  occu- 
pancy or  partition.  Express  consent  is  a  fact,  and  so 
also  is  tacit  consent.  Locke,  in  his  "Treatise  on  Civil 
Government,"  the  physiocrats,  Adam  Smith,  and  Stuart 
Mill  in  "The  Principles  of  Political  Economy,"  and 
many  economists  state  that  property  rights  owe  their 
origin  to  work.  According  to  Locke  (the  originator  of 
this  theory)  every  individual  has  originally  the  duty 
and  right  to  work,  and,  as  a  means  for  the  fulfillment  of 
his  duty  and  the  exercise  of  his  right,  has  the  power 
of  occupancy.  The  theory  of  the  English  philosopher 
makes  property  come  into  existence  only  after  work 
has  been  applied,  yet  bases  it  on  work,  as  a  right  to 
exercise  suitable  activity,  and  therefore  gives  rise  to 
property  at  the  moment  in  which  he  uses  such  a  right 
through  occupancy.  But  work  understood  in  this  sense 
is  as  inviolable  as  personal  activity  with  which  it  is 
confused.  In  fact  the  true  basis  of  property  is  the 
person.  If  applied  work  is  conceived  as  the  cause  of 
private  property,  private  property  cannot  be  justified, 
because  we  must  show  first  that  there  is  a  right  to 
occupy  things  to  make  them  the  object  of  work.  Work 
is  the  method  of  acquisition,  which  demands  a  prior 
justification  of  property.  Hobbes,  Montesquieu  in 
his  "L'Esprit  des  Lois,"  Bentham,  and  Charles  Comte 
make  positive  law  the  base  of  property  without  bother- 
ing themselves  whether  positive  law,  in  its  recognition  of 
private  property,  conforms  or  not  to  reason  and  justice. 
§231.  Kant's  Theory  of  Property.  Kant  thinks  that 
property  cannot  depend  upon  the  isolated  act  of  the 
individual,  such  as  occupancy  or  transformation.  Prop- 
erty lies  not  only  in  physical  possession,  but  in  intel- 
lectual possession,  because  the  "mine"  by  right  is, 
according  to  that  philosopher,  so  inherent  in  me  that 


KANT'S  THEORY  387 

its  use  by  another  without  my  consent  harms  me  even 
when  I  have  not  the  physical  possession  of  it.  Every 
external  object  can  become  somebody's ;  otherwise  things 
would  be  of  no  use,  and  there  would  be  an  opposition 
between  the  appetitive  capacities  of  freewill  and  freedom, 
determined  by  reason,  which  demands  property.  To  con- 
ceive of  an  object  as  under  my  power,  not  in  the  sense 
of  mere  physical  possession,  demands  intellectual  posses- 
sion. In  general,  juristic  propositions,  as  "dictamina 
rationis,"  are  a  priori  in  Kant's  mind.  The  proposition 
of  an  a  priori  right  is  analytical  or  explicative  of  the 
physical  possession,  because  he  who  takes  something 
from  me  restricts  my  freedom  and  violates  a  juristic 
axiom,  and  then  affects  the  rights  of  my  person. 
But  the  above  proposition  of  the  possibility  of  intel- 
lectual possession,  despite  the  want  of  physical  deten- 
tion, is  synthetic,  as  the  thing  is  not  in  my  hands, 
and  is  a  priori  in  that  it  establishes  the  necessity  of  a 
possession  of  right  without  possession.  The  right  of  in- 
dividual possession  lies  in  the  original  common  property  in 
land,  and  in  the  a  priori  general  will,  allowing  such  com- 
mon ownership.  Land  cannot  be  free  by  nature  originally, 
otherwise  it  would  have  in  itself  a  quality  which  would 
place  it  above  all  possession.  Freedom  of  land  could 
only  arise  by  agreement  among  those  who  had  a  right 
to  its  service,  and  nevertheless  forbade  the  use  of  it 
among  themselves,  in  which  case  the  land  would  be 
theirs.  Prehistoric  common  possession  cannot  be  the 
notion  of  individual  possession,  otherwise  free  objects 
would  be  free  of  themselves,  and  should  be  regarded  as 
"res  nulius"  by  right,  — an  absurd  proposition.  Kant 
cannot  conceive  a  "res  nullius"  in  property,  but  supposes 
that  it  must  be  "res  communis."  For  common  property 
excludes  individual  property,  as  is  noted  by  Tullio  in 
"II  Diritto  di  Proprieta  nella  Dottrina  di  Kant."  If 


388     METHODS  OF  ACQUIRING  PROPERTY 

I  wish  certain  external  things  to  be  mine,  it  is  necessary 
that  in  the  same  act,  I,  of  right,  recognize  the  obligation 
of  all  to  respect  private  property.  Such  an  obligation 
is  contained  in  the  very  conception  of  the  right  of 
possession.  The  only  will  suitable  to  enforce  this 
obligation  and  to  protect  the  "meum"  and  "teum"  is  the 
general  will  of  society.  In  a  state  of  society  possession 
is  not  provisional  as  in  the  state  of  nature,  but  is  per- 
manent. The  State  itself,  a  product  of  reason,  enforces 
the  relations  into  which  men  enter,  but  does  not  create 
their  necessity.  A  civil  constitution,  writes  Kant,  is 
merely  a  law  by  which  each  one  is  assured  of  his 
own.  A  State  does  not  create  or  determine  property. 
Now  all  this  theory,  while  it  is  based  upon  the  principle 
of  individual  personality  and  puts  in  evidence  the 
social  element  of  property,  is  capable  of  being  general- 
ized where  it  touches  the  propositions  about  intellectual 
possessions  and  of  furnishing  the  philosophical  reason 
of  private  ownership,  because  the  practical  synthetic 
judgment  a  priori  is  not  the  only  proposition  which 
enunciates  the  possibility  of  intellectual  possession,  but 
every  proposition  as  well  that  is  concerned  with  the 
fundamentals  of  property,  as  we  have  said  before. 

§  232.  Fichte's  Theory  of  Property.  Fichte  con- 
structs his  doctrine  with  the  elements  of  Kant's  theo- 
ries, but  he  exaggerates  the  significance  of  the  social 
element.  He  believes  that  it  is  necessary  to  distinguish 
three  kinds  of  contracts  binding  individuals  together, 
as  Filomusi-Guelfi  says  in  the  "Enciclopedia  Juridica." 
These  consist  of  the  contract  of  property,  the  contract 
of  defense,  and  the  contract  of  union.  By  the  first 
an  individual  possesses  something,  and  demands  that 
others  do  not  claim  it,  obliging  them  to  respect  his 
possession  so  that  he  will  respect  theirs.  By  the  second 
each  one  promises  to  help  the  other  defend  his  property, 


FICHTE'S  THEORY  389 

if  the  other  promises  to  do  the  same  for  him.  The 
force  of  defense  is  established  because  individuals  form 
part  of  the  State  through  an  agreement  of  union  which 
guarantees  the  other  two  contracts.  The  individual  has 
an  original  right  to  be  a  causal  unit  in  the  objective 
world,  and  therefore  by  the  contract  of  property  there 
is  assigned  to  him  a  portion  as  the  sphere  for  his  activi- 
ties, provided  that  he  respects  the  freedom  of  others  and 
promises  the  inviolability  of  their  spheres  of  action. 
Freedom  and  activity  are  not  possible  without  life. 
Freedom  once  guaranteed,  life  must  be  guaranteed;  an 
absolute  and  inalienable  property  of  man  is  the  right 
to  life.  In  that  is  found  the  ultimate  object  of  the  use 
of  things.  When  a  man  cannot  live  by  his  work,  there 
is  not  left  to  him  anything  which  is  really  his,  and  the 
contract  as  regards  him  is  void.  Everyone  must  give 
conditions  of  life  to  those  who  lack  them  if  he  wishes  to 
be  helped  in  turn;  whence,  eleemosynary  institutions. 
In  the  above  theory  ownership  is  identified  with  the 
personal  principle,  but  the  conceptions  of  contract  and  of 
the  right  to  life  and  work,  place  an  intrinsic  limit  on  this 
same  ownership,  which  is  the  logical  premise  of  socialism. 
This  premise  is  that  every  man  has  an  inherent  right 
to  a  part  of  the  external  world  as  his  property;  that 
there  is  a  natural  right  of  property  which  the  State 
should  recognize  and  protect.  It  is  only  necessary  to 
be  a  man  to  have  this  right  as  sacred  and  inviolable  as 
freedom  or  personality.  It  is  the  State's  duty  to  put 
each  one  in  possession  of  the  property  to  which  his  need 
and  capacity  give  him  a  right.  To  the  doctrine  of 
Fichte,  and  to  the  principle  now  stated,  Laveleye  agrees 
in  his  book,  "De  la  Propriete  et  ses  Formes  Primitives." 
We  must  observe  that  Fichte  and  Laveleye  confuse  two 
very  diverse  conceptions,  the  conception  of  guaranty  that 
the  State  should  give  to  the  development  of  the  equal 


390     METHODS  OF  ACQUIRING  PROPERTY 

capacity  of  all  towards  ownership,  and  that  of  the  duty 
imposed  upon  the  State  of  procuring  property  for  every 
individual.  We  cannot  doubt  that  every  man,  as  such, 
has  an  essential  right  to  exercise  his  activity  over  objects 
within  his  sphere  by  the  use  of  means  necessary  for  the 
attainment  of  his  purposes.  The  State  should  give  each 
man  conditions  suitable  to  carry  out  that  right  or  tend- 
ency towards  acquisition  eliminating  possible  obstacles, 
and,  in  fact,  aiding  him.  But  since  an  individual  has 
initiative  power  he  should  act  himself,  carrying  out  the 
series  of  particular  acts  by  which  the  things  may  become 
his.  His  inherent  right  or  theoretical  power  of  property 
should  take  the  form  of  an  acquired  right  or  practical 
power.  The  first  is  an  abstract  power  without  the 
second,  referring  more  to  the  essence  than  the  individual- 
ity of  man.  It  is  the  simple  right  that  all  have  to  prop- 
erty. The  second  is  a  concrete  and  individual  power, 
and  is  the  true  property  right  which  looks  to  acquisition. 
The  acquisition  of  property  in  the  concrete  is  for  the 
individual  and  not  for  the  State,  which  is  called  upon 
to  recognize,  guarantee,  and  to  protect  the  activity  of 
the  citizens,  but  not  to  substitute  its  actions  for  theirs. 
The  State  must  hold  safe  the  principle  of  formal  or 
juristic  equality,  but  since  it  owes  the  greatest  respect 
to  human  liberty,  which  develops  with  the  indefinite 
quantity  of  various  original  and  acquired  powers,  it 
cannot  decree  material  equality. 

§  233.  Property  a  Right  of  Man  in  the  Abstract. 
The  individual  is  a  part  of  society  and  should  be 
limited  in  his  control  of  material  objects.  Individual 
rights  presuppose  always  an  ethical  whole,  in  which 
there  are  conditions  of  development,  protection,  and 
control.  The  individual  derives  the  stability  of  will 
over  concrete  objects  from  the  ethical  whole,  that  is, 
from  the  laws  governing  the  disposition  of  property. 


PROPERTY  A  RIGHT  OF  MAN  391 

Trendelenburg  notes  that  the  right  to  property  belongs 
to  man  in  the  abstract,  who  confirms  and  limits  it. 
The  doctrine  of  Kant  about  the  two  kinds  of  possession 
began  to  affirm  speculatively  the  necessity  of  a  criticism 
of  the  other  doctrines,  which  based  property  upon  the 
isolated  act  of  the  individual.  Vico  has  clearly  seen  that 
control  is  the  very  law  of  the  existence  of  private  prop- 
erty, as  Cocchia  shows  in  his  book,  "I  Limiti  della  Prop- 
rieta."  He  distinguished  the  occasion  of  private  owner- 
ship, that  is,  the  motive  of  its  historical  appearance, 
from  its  cause  or  rational  basis.  Private  property,  like 
freedom,  has  its  base  in  human  nature  itself.  In  owner- 
ship there  are,  according  to  the  Neapolitan  philosopher, 
the  "cupiditas"  or  interweaving  of  egoistical  senses,  and 
the  "vis  veri,"  the  "ratio,"  the  ethical  law.  Ownership 
is  "prudens  utilitatum  destinatio,  hoc  est  destinatio  facta 
ratione  non  cupiditate  suadente,  gignit  dominium."  In 
other  words,  in  regulating  ownership  we  must  be  guided 
not  only  by  what  is  useful  for  the  individual,  but  by  the 
community's  needs  as  well,  following  the  dictates  of 
civil  prudence.  Vico  said  that  there  is  a  civil  control, 
which  is  exercised  over  the  possessions  of  the  citizens, 
superior  to  every  private  right.  This  control  is  the 
limiting  social  reason,  and  not  eminent  domain,  which 
makes  the  State  the  owner  of  all  property.  Romagnosi 
speaks  of  a  natural  ownership,  distinguishing  it  from 
one  purely  civil,  but  using  the  words  in  an  entirely 
different  sense.  Natural  ownership  is  synonymous  with 
an  absolutely  egoistical  use  and  would  be  possible  in 
a  state  of  nature,  while  civil  ownership  is  had  in  a 
society,  and  necessitates  the  tempering  of  an  individual's 
right  with  necessity  and  social  utility.  In  a  state  of 
nature  powers  are  always  controlled,  and  the  legislator 
should  observe  that  law,  based  on  real  relations.  .If 
the  legislator  place  a  limitation  on  private  rights  he 


392     METHODS  OF  ACQUIRING  PROPERTY 

does  not  order  a  sacrifice,  because  such  limitation  is 
necessary  to  the  attainment  of  security  and  other 
benefits  which  the  individual  obtains  from  society. 
The  chief  requirement  of  positive  law  is  that  it  equalizes 
between  individuals  their  power  to  be  useful  to  them- 
selves through  equality  and  security  of  common  free- 
dom. The  tempering  of  their  egoistic  freedom 
harmonizes;  does  not  weaken,  but  reenforces;  does  not 
take  away  the  powers  of  private  use,  but  rather  makes 
it  greater  and  surer.  Whoever  obeys  the  laws  of  the 
community  obeys  necessity  and  himself;  whence  it 
follows  that  this  control  does  not  lessen  individual 
ownership,  and  that  natural  control  is  not  changed, 
but  subdued.  Rosmini  expresses  the  same  theory 
when  he  distinguishes  between  property  and  the  right 
of  property.  Considering  only  the  relations  between 
persons  and  things,  property  can  be  conceived  of  in  an 
unlimited  way,  but  looking  upon  property  as  a  right,  it 
should  be  subordinate  to  practical  justice;  and  so  a  man 
can  be  forced  to  give  up  something  of  little  or  no  use 
to  himself,  which  is  harmful  to  others,  or  an  obstacle 
to  their  welfare. 

§234.  Code  Definitions  of  Property  Considered.  The 
definition  of  property  given  by  the  French  and  Italian 
Codes  recognizes  in  so  many  words  the  conception 
of  control  and  limitation.  Property,  according  to 
these  codes,  is  the  right  to  enjoy  and  use  things  in  the 
most  absolute  way  as  long  as  you  do  not  make  a  use  of 
them  forbidden  by  the  laws  or  ordinances.  Rosmini 
finds  the  limitation  in  the  last  part  of  the  definition. 
What  is  the  object  of  laws  and  ordinances,  he  says, 
if  they  do  not  forbid  individuals  making  use  of  their 
property  in  a  way  injurious  to  others  or  the  Common- 
wealth? Do  they  not  thus  show  that  they  have  no  right 
to  use  their  property  so?  The  legislatures  in  fact  do 


CODE  DEFINITIONS  393 

show  that  there  is  a  feeling  that  property,  as  a  right,  has 
limitations,  even  if  they  do  not  state  this  categorically. 
Perhaps  it  would  have  been  better  if  the  conception  of 
limitation  had  been  expressed  in  the  definition  so  that 
the  idea  of  absolute  enjoyment  and  disposition  could 
not  be  reconciled  with  the  prohibition  of  certain  uses, 
and  if  it  had  not  been  necessary  to  emphasize  the  notion 
of  property  as  a  general  power  given  over  inanimate 
objects;  but  we  must  remember  that  the  French  legis- 
lature had  in  view  the  making  of  a  solemn  proclamation 
of  the  individual  rights  of  property  to  supplant  the  then 
doctrines,  —  that  such  rights  lay  in  positive  law. 
Examples  of  limitations  are  condemnations  for  public 
use,  legal  servitudes,  and  forced  cooperation.  By  con- 
demnation the  owner  is  forced  to  give  his  property  to 
society  but  receives  reimbursement.  Without  con- 
demnation for  public  use,  observes  Rossi,  there  would 
not  be  any  improvements,  —  streets,  canals,  harbors, 
or  monuments.  There  would  also  be  no  means  of 
gaining  profit  in  many  countries  from  the  generous 
treasures  of  nature  or  of  getting  the  precious  metals  to  the 
industrial  and  commercial  world.  Condemnation  often 
increases  the  value  of  property,  as  in  the  case  of  the 
construction  of  a  railroad.  If  the  railroad  were  not 
built  the  land  and  houses  near  the  appropriated  land 
would  suffer,  not  getting  the  value  which  they  acquire 
from  the  railroad.  Servitudes  established  by  law  look 
to  a  double  end,  both  to  public  and  private  benefit. 
Military  service  is  of  the  first  kind ;  forced  concession 
of  water  to  lands  that  can  profit  by  it,  ways  of  neces- 
sity, aqueducts,  and  party-walls  are  servitudes  of 
the  second  class.  Obligatory  cooperation  is  certainly 
an  important  limitation  of  property,  in  which  the 
subordination  of  private  property  to  public  use  is 
allowed  and  enforced.  By  condemnation  the  private 


394     METHODS  OF  ACQUIRING  PROPERTY 

property  is  ceded  to  the  State,  which  puts  it  to  a  use 
that  the  citizen  could  not;  by  servitudes  the  State 
forces  the  owner  to  let  it  make  use  of  his  property. 

§  235.  Necessary  Restrictions  on  Property.  The 
theory  of  the  necessary  restrictions  on  property,  about 
which  Lomonaco  has  recently  written  in  a  mono- 
graph, "I  Temperamenti  della  Proprieta  Prediale,"  is 
a  contradiction  given  by  the  legislature  to  optimism 
and  settled  harmony  of  the  economic  school.  The  simple 
and  normal  compatibility  of  private  interest  and  pub- 
lic use,  presupposed  by  Adam  Smith,  Malthus,  Ricardo, 
Say,  and  Rossi,  is  transformed  by  the  work  of  Bastiat 
into  an  irresistible  harmony.  An  individual,  Bastiat 
says,  finds  in  selfish  interests  the  stimuli  to  action,  but 
at  the  same  time  is  subject  to  a  providential  law  forcing 
him  to  work  for  the  good  of  all,  while  he  works  freely 
for  himself.  There  is  no  doubt  that  a  man  can  err 
and  violate  the  law,  but  it  is  none  the  less  true  that 
sorrow  follows  error,  pain  follows  vice,  and  punish- 
ment follows  wrong.  From  this  it  is  plain  that 
discord  is  accidental  and  transitory  and  harmony  es- 
sential and  permanent.  The  free  course  of  nature  is 
not  impeded;  it  gives  human  power  free  scope  for 
expansion,  and  thus  we  have  the  higher  orders.  The 
State  intervenes  when  the  use  of  force  is  legitimate, 
that  is,  if  a  right  is  trampled  under  foot,  but  for 
the  most  part  it  recognizes  the  fullest  freedom.  But 
this  immutable  and  universal  harmony,  imagined  by 
Bastiat,  does  not  exist  in  the  physical  world,  because  the 
cosmic  system  is  always  altered  and  modified  by  perturb- 
ing forces,  which  affect  the  flora,  fauna,  seas,  and  conti- 
nents. Harmony,  in  Bastiat's  mind,  is  the  social  order 
or  human  welfare  that  develops  into  acts  without  the 
intervention  of  the  State,  which  need  not  take  part, 
and  without  true  individual  freedom,  on  which  he 


INHERENT  RIGHTS  395 

so  much  insists,  for  it  cannot  in  any  way  hinder  the 
development  of  the  harmony.  Certainly  there  is  no  free- 
dom here  in  its  real  sense  since  he  pays  no  attention 
to  the  effect  of  stubbornness,  obstinacy,  and  wronghead- 
edness  in  ethical  relations  (for  example,  in  economics). 
And  at  the  same  time  he  asserts  that  the  certain  conse- 
quences of  error,  vice,  and  wrong  are  sorrow,  pain,  and 
punishment.  That  is  contradicted  by  experience  which 
teaches  that  an  individual  following  his  interest,  even 
if  he  does  not  know  or  cognize  it,  is  led  spontaneously 
to  the  point  of  coincidence  of  his  good  and  the  general 
welfare.  To  Cairns,  and  before  him  to  Minghetti,  we 
owe  a  just  and  clear  criticism  of  the  optimism  of  Bastiat. 
§  236.  Equality  of  Inherent  Rights  Gives  no  Right  to 
Equal  Property.  Man  has  an  inherent  right  to  use 
his  activity  over  external  things  for  the  attainment 
of  his  objects.  But  a  belief  in  this  conception  does 
not  indicate  a  title  to  property  common  to  all  men 
whose  inherent  rights  are  equal.  A  particular  fact 
intervenes,  which  takes  away  the  abstract  similarity 
and  gives  birth  to  a  juristic  power  over  the  things; 
acquired  property  makes  its  appearance.  Now  this 
concrete  fact  is  acquisition,  in  which  we  can  distin- 
guish four  grades  or  four  successive  rights  according 
to  the  analysis  of  Rosmini.  There  comes  first,  as  cause 
and  origin  of  all  other  rights,  a  natural  right,  which  is 
the  right  to  legitimate  action  which  does  not  violate 
another's  property.  This  right  when  exercised  pro- 
duces the  same  action  that,  fulfilled,  becomes  something 
adherent  to  us,  a  part  of  us  and  our  right  as  long  as  it 
lasts.  If  the  action  be  such  that  it  can  bind  an  external 
object  to  ourselves  while  we  enjoy  the  right  of  action, 
we  enjoy  as  well  the  right  of  joining  to  us  an  external 
thing  and  of  making  it  our  own.  The  action  completed, 
we  have  joined  something  to  ourselves  and  have  ampli- 


396     METHODS  OF  ACQUIRING  PROPERTY 

fied  our  power  to  work,  and  the  right  of  all  these  actions 
is  ours.  The  methods  of  acquisition  are  partly  original 
and  partly  derivative;  the  first  do  not  demand  the  agree- 
ment of  the  will  of  others,  the  second  presuppose  it. 
The  original  rights  are  appropriation,  accession,  confu- 
sion, and  prescription;  the  derivatives  are  agreement 
and  inheritance. 

§  237.  Appropriation.  Appropriation  is  the  taking 
possession  of  a  vacant  external  object  with  the  intention, 
recognizable  by  others,  of  having  its  exclusive  use. 
There  are  three  requisites,  —  a  thing  which  can  be 
possessed,  the  taking  of  possession,  and  the  sign  of 
such  taking  recognizable  by  others.  The  thing  must 
be  subject  to  appropriation,  must  be  external,  other- 
wise it  is  not  an  object  of  acquired  property,  to  which 
appropriation  refers,  but  is  the  subject  of  natural  prop- 
erty. It  must  be  susceptible  to  the  physical  acts 
necessary  for  the  physico-moral  bond  to  realize  the 
idea  of  property  or  of  the  union  of  the  thing  and  the 
person.  It  must  be  free,  because  appropriation  cannot  be 
subversive  of  the  rights  of  others.  The  taking  of  posses- 
sion is  composed  of  the  moral  act  or  will  to  have  and  to 
keep  the  object,  and  the  physical  or  the  subjection  of 
it  to  the  power  of  the  person.  If  the  first  is  lacking 
there  is  simple  detention;  if  the  latter  is  lacking  there 
is  a  mere  intent.  The  token  shows  to  men  that  the  object 
is  part  of  our  estate.  We  cannot  say  that  the  right  to 
property  is  formed  when  other  men  do  not  know  what 
is  taken  and  what  not.  We  must  always  distinguish 
the  token  from  the  physical  link;  the  former  only  pre- 
supposes the  existence  of  the  latter,  as  a  token  always 
presupposes  the  thing  itself.  There  are  four  means  of 
appropriation, — simple  occupancy,  hunting,  fishing,  and 
finding, — which  in  their  turn  comprehend  three  condi- 
tions,—  that  of  an  object  unacquired,  of  a  "res  pro  dere- 


ACCESSION  397 

licto,"and  of  things  lost,  found,  and  not  reclaimed  within 
the  time  established  by  the  statutes,  after  suitable  means 
of  publication  have  been  used.  Appropriation  is  bounded 
by  limits  both  of  juristic  and  physical  rules.  The  limits 
of  the  juristic  order  are  fixed  by  quality  and  quantity. 
Qualitatively,  of  course,  appropriation  cannot  extend  to 
those  things  which,  being  immense  and  inexhaustible, 
are  in  negative  union  only  with  mankind,  although  a  rela- 
tive small  portion  of  them  can  be  occupied.  It  is  limited 
quantitatively  because  we  cannot  exercise  our  activity 
on  whatever  free  things  we  believe  suitable  to  the  attain- 
ment of  our  ends  to  the  point  where  our  acquisition 
becomes  destructive  or  harmful  to  another  personality. 
The  limits  depending  upon  the  physical  order  are  such 
that  man  can  occupy  all  those  things  which  he  can 
reduce  to  his  power  in  such  a  manner  that  others  may 
know  of  his  right  to  them. 

§  238.  Accession.  Accession  is  a  special  method  of 
acquisition  and  denotes  the  act  by  which  an  object  losing 
its  individuality  is  united  and  incorporated  in  our  prop- 
erty without  being  transformed  or  confused  with  it.  With 
this  understood,  the  acquisition  of  the  property  in  fruits 
and  in  the  young  of  animals  can  be  seen  not  to  be  an 
example  of  accession,  since  their  existence  is  begun  with 
separation,  which  is  Opposed  to  accession,  which  con- 
sists of  union  and  incorporation.  In  this  case,  as  in 
others  similar  to  it,  there  is  the  exercise  of  the  right  of 
property,  and  the  increase  is  governed  by  the  "jure 
domini."  Neither  does  specification,  confusion,  and  mix- 
ture enter  into  the  sphere  of  accession  because  in  that 
case  there  are  not  objects  which  transform  and  unite. 
On  this  point  the  Austrian  and  Italian  Codes  have 
followed  a  rational  conception  departing  from  Roman 
law  and  the  French  Code  in  their  recognition  of  acces- 
sion as  a  simple  development  of  property,  and  in  their 


398     METHODS  OF  ACQUIRING  PROPERTY 

extension  of  its  bounds  to  comprehend  the  acquisition 
of  nature's  increase,  specification,  confusion,  and  mix- 
ture. Accession  is  caused  either  by  nature  or  by  the 
act  of  man.  There  are  examples  of  accession  by  nature 
in  alluvium,  in  "avulsium,"  in  "alveus  relictus,"  in  the 
"insula  in  flumine  nata;"  of  accession  by  the  act  of  man 
in  "insedeficatio,"  "plantatio"  and  "satio,"  "scriptura," 
"pictura"  and  all  other  forms  of  "adjunctio."  A  kind  of 
mixed  accession  is  also  sometimes  spoken  of,  which  is 
brought  about  by  nature  and  art  together.  This  is  proved 
by  the  example  of  agriculture.  But  we  must  take  care 
that  in  artificial  accession  we  do  not  lose  sight  of  the 
element  or  forces  of  nature,  as  we  need  the  latter  in  many 
kinds  of  productions.  From  this  it  follows  that  the 
examples  of  mixed  accession,  that  is,  "satio"  and  "plan- 
tatio," belong  to  artificial  accession  or  that  derived  from 
the  act  of  man. 

§  239.  Alteration.  Invention  and  prescription  are 
the  other  two  original  methods.  Alteration  is  an  act 
by  which  a  thing  is  transformed  in  such  a  manner 
as  to  make  it  "nova  species."  To  some  it  seems 
existence  depends  upon  form,  and  the  "nova  species" 
therefore  should  be  attributed  to  him  who  has  pro- 
duced it,  while  to  others  it  seems  that  the  material 
was  more  necessary  and  the  "nova  species"  should 
belong  to  its  owner.  The  jurisconsults'  "eriscundi"  dis- 
tinguish two  cases;  if  the  new  species  could  be  reduced 
to  its  primitive  form  it  should  belong  to  the  owner  of 
the  material;  if  the  new  thing  could  not  be  reduced  it 
must  belong  to  him  who  made  it,  upon  payment  by 
the  owner  of  the  price  of  the  material.  Modern  legisla- 
tion, believing  in  the  reality  of  work  and  the  principles 
of  equity,  enacts  that  if  a  person  has  taken  material 
that  does  not  belong  to  him  to  form  something  new 
whether  the  material  can  or  cannot  be  returned  to  its 


PRESCRIPTION  399 

original  form,  the  owner  of  the  material  has  the  right 
to  the  thing  formed  from  it  reimbursing  the  laborer  for 
his  work.  When,  however,  the  work  has  been  such  as 
to  greatly  increase  the  value  of  the  material  taken,  the 
labor  expended  is  considered  as  of  more  value,  and  the 
worker  has  the  right  to  retain  the  thing  upon  which  he 
has  worked,  paying  to  the  owner  of  the  material  the 
price  thereof. 

§  240.  Prescription.  Prescription  is  not  an  infamous 
power  created  by  positive  law  to  decrease  litigation,  but  is 
an  institution  conforming  to  reason,  because  in  property 
there  should  be  action  of  the  person,  and  failure  to  act 
for  a  long  time  entails  the  extinction  of  the  public  recog- 
nition which  binds  the  person  and  thing.  Now  recog- 
nition and  connection  diminish  for  the  old  owner  as 
they  develop,  strengthen,  and  increase  for  the  possessor. 
The  conception  of  necessity  of  the  will  of  the  person 
therefore,  active  or  visible  in  some  manner  in  the  object 
is  the  true  foundation  of  prescription.  Prescription  is 
the  method  of  acquisition  "sui  generis,"  yet  not  abso- 
lutely independent,  because  it  serves  to  supplement 
a  bad  title  or  the  lack  of  title  on  the  part  of  the  possessor. 

§  241.  Derivative  Methods  of  Acquiring  Property; 
Agreement  and  Inheritance.  The  derivative  methods  are 
agreement  and  inheritance;  contract  is  the  accord  of 
two  or  more  wills  over  a  juridical  object  of  economic 
value.  In  agreement  the  essential  by  which  property 
changes  hands  is  consent,  which  is  the  meeting  of  the 
minds  of  the  parties.  The  Roman  law  demanded 
"traditio"  for  such  a  change,  but  modern  law  re- 
quires fewer  physical  conditions,  as  expressed  by  the 
phrase,  "consensus  parit  proprietaten."  The  principle 
is  just  because  the  real  cause  of  the  transfer  does  not 
lie  in  the  material  act  of  delivery,  which  is  the  token,  but 
in  the  "consensus  in  idem  placitum."  In  the  interest  of 


400     METHODS  OF  ACQUIRING  PROPERTY 

the  third  parties,  however,  to  whom  it  is  of  great  impor- 
tance to  know  changes  of  title,  it  has  been  established 
that  title  passes  by  writing.  Inheritance  is  administra- 
tive and  testamentary;  in  respect  to  extent  total  in 
administration,  and  partial  in  testamentary  descent. 

§  242.  Difference  between  the  Philosophy  and  the 
Law  of  Property.  In  the  "modus  acquirendi"  we  find 
immediately  the  "titulus"  of  the  positive  law,  and 
mediately  that  of  the  rational  law.  In  the  eyes  of 
the  lawyer  legality  of  title  lies  only  in  contract,  will, 
prescription,  and  occupancy;  that  is,  the  methods  of 
acquisition  which  are  right  recognized  by  law  as  the 
source  of  the  right.  The  philosopher  wishes  to  search 
out  the  inherent  right,  considering  the  facts  and  recog- 
nizing the  title  on  them,  and  then  the  "modus  acqui- 
rendi" in  the  method.  The  "modus  acquirendi"  is  the 
term  between  the  inherent  and  acquired  right.  A  lawyer 
must  prove  the  act  which  is  the  acquired  right  with  its 
approximate  cause  which  is  the  method  of  acquisition ; 
the  philosopher  wishes  to  go  further  and  to  find  the  ulti- 
mate cause  that  is  part  of  the  person  and  is  natural 
rights. 


ACQUISITION  AN  INSTINCT  401 


CHAPTER  V 

THE  HISTORY  OF  PROPERTY  AND  OF 
METHODS  OF  ITS  ACQUISITION 

THE  ACQUISITIVE  ACTIVITY  OF  ANIMALS  AND  MAN. —THE 
HISTORY  OF  PROPERTY  AND  THE  HISTORY  OF  PERSONALITY.— 
COLLECTIVE  PROPERTY.  —  THE  FAMILY  COMMUNITY.  —  CHRIS- 
TIANITY AND  THE  WORTH  OF  THE  INDIVIDUAL.  — FEUDALISM. 

—  THE  REFORMATION  AND  NATURAL    LAW.  —  COMPLETE    INDI- 
VIDUALIZATION.    AND    THE     CONTROL   OF   PRIVATE    PROPERTY. 

—  THE  METHODS  OF    PRIMITIVE   ACQUISITION.  —  THE  DIVISION 
OF  PROPERTY.— PRESCRIPTION.  EQUITY,  AND  CIVIL  PROCEDURE. 

§  243.  Tendency  to  Acquisition  an  Instinct.  Aris- 
totle speaks  of  the  natural  KT^^  that  is,  of  the  spon- 
taneous activity,  which  looks  to  the  procuring  of  nourish- 
ment, common  alike  to  animals  and  man,  and  which  seeks 
the  things  necessary  and  useful  to  the  existence  of  the 
individual  and  the  social  body.  An  abundance  of  such 
things,  according  totheStagirite,  constitutes  wealth,  and 
therefore  his  "Ctetics"  are  part  of  his  "Economics," 
which  are  based  on  the  science  of  life.  The  human  activ- 
ity, which  looks  to  the  procuring  of  food,  is  a  development 
of  the  same  property  in  animals  but  it  is  determined  dif- 
ferently by  the  complexes  of  his  qualities,  which  distin- 
guish the  human  species  from  all  others.  There  is  no  doubt 
of  such  a  development  if  mind  itself  presupposes,  com- 
prehends, and  is  superior  to  nature;  if  thought  lies 
apart  from  sensibility  and  reason,  contains  and  raises 
sense  as  well  as  thought,  making  the  development  and 
grasp  of  mind  more  perfect.  The  analogy  between  phy- 


402  HISTORY  OF  PROPERTY 

siology  and  economics,  so  much  in  vogue  to-day,  is  true 
if  we  understand  it  in  its  wide  sense,  because  economics, 
the  science  of  things  destined  to  the  satisfaction  of 
necessities,  contain  the  theory  of  social  vegetation. 
Carried  to  an  extreme  it  leads  to  a  grave  error,  since  eco- 
nomics on  the  one  hand  enter  into  social  statics  (very 
near  the  animal  kingdom)  and,  on  the  other,  the  same 
statics  receive  an  impulse  from  dynamics  which  depend 
upon  the  elements  of  the  highest  forces  of  human  nature 
and  include  historical  development.  The  economic  activ- 
ity of  man  cannot  be  separated  from  thought  and  free 
will  since  no  entity  can  act  independently  of  its  nature. 
The  consequence  is  that  economic  laws  are  not  absolutely 
the  equal  of  philosophical  laws  because  they  do  not  de- 
pend, as  the  latter,  upon  thought  and  will. 

§  244.  Property  an  Attribute  of  Man.  In  the  eco- 
nomic functions  of  animals  there  are  two  coordinate 
actions,  the  moving  or  transforming  of  the  material, 
and  the  action  or  movement  of  the  special  organs  which 
perform  the  above  operation  and  tend  to  effect  the  pur- 
pose. This  coordination  gives  evidence  of  the  presence 
of  an  ultimate  end  and  is  the  clearest  proof  of  the 
necessity  of  teleology,  not  abstract  and  transcendental 
but  concrete  and  objective.  The  difference  between  an 
organism  and  a  mechanism  lies  properly  in  this :  that  in 
the  organism  the  end  is  ever  present,  and  is  brought 
about  by  activity;  in  the  mechanism  it  is  extrinsic.  In 
this  coordination  of  two  actions,  however,  the  perfecting 
influences  of  a  well-developed  mental  energy  are  lacking 
in  animals,  as  well  as  the  constant  volitive  variations 
of  methods ;  so  that  an  animal  is  not  an  efficient  worker 
nor  can  he  increase  the  complexity  or  specialization  of 
his  labor  by  adapting  himself  always  to  more  convenient 
and  progressive  methods.  An  animal  ceases  to  advance 
at  some  stage  of  economic  life  because  its  organism 


THE  RIGHT  OF  PROPERTY  403 

(especially  in  relation  to  psychic  activity)  does  not  allow 
it  to  pass  the  bounds  within  which  its  acquisitive  func- 
tions are  confined  by  nature.  In  animals  such  functions 
are  always  limited  to  the  sphere  of  instinct  and  the 
mechanical  associations  of  desire  and  satisfaction,  and 
lead  to  the  temporary  possession  of  the  object;  in  man 
mind,  which  desires  everything,  and  the  principle  of  its 
autonomy  control  such  functions,  and  they  make  for 
ownership  and  property.  Only  mind  can  dominate 
nature  and  comprehend  it  in  theory  and  practice.  This 
is  an  attribute  of  man  alone.  No  one  has  yet  dared  to 
say  that  individuality  furnished  with  sensibility  and 
spontaneous  motion,  that  is,  sensibility  in  motion,  can 
be  the  equal  of  the  individuality  capable  of  enunciating 
the  duo-syllabic  ego,  which  is  the  sign  of  the  separation 
of  man  and  brute.  An  animal  can  join  itself  to  an 
object  by  a  physical  bond  and  can  grieve  for  it  if  he 
is  deprived  of  it,  but  he  is  not  able  to  create  the  moral 
bond,  which  distinguishes  property  from  possession. 

§  245.  The  Right  of  Property  Subject  to  Evolution. 
The  history  of  property  is  in  the  last  analysis  the  his- 
tory of  human  nature,  because  property  is  freedom 
applied  to  things,  as  freedom  is  nothing  but  ownership 
of  self.  Wheresoever  one  is  found  there  is  the  other; 
and  where  ownership  is  violated,  there  personality  is 
violated  and  vice  versa.  In  all  manifestations  of  human 
activity  progress  (as  in  the  case  of  the  universal  evolu- 
tion of  entities)  is  the  divergence  from  the  simple  to  the 
complex,  from  formless  homogeneity  to  varied  hetero- 
geneity, accompanied  by  the  greatest  similarity  and 
profoundest  correlations  of  parts  and  by  a  constantly 
increasing  perfection  of  attributes.  The  ancient  philoso- 
phers expressed  this  conception  by  saying  that  from 
the  one  and  from  the  whole,  before  the  existence 
of  any  sub-divisions  of  the  great  unit,  there  came  a 


404  HISTORY  OF  PROPERTY 

division  and  separation  of  the  parts,  which  tend  to 
develop  into  one  distinct  and  concrete  unit  or  whole 
developed  to  its  fullness,  an  harmonic  synthesis  very 
different  from  the  original  and  embryonic  synthesis. 
At  first  the  human  community  was  one  in  which  the 
individual  was  only  a  part  and  instrument,  then  he 
developed  concrete  individuality,  trying  to  free  himself 
from  society,  and  tends  to  reach  a  rational  harmony 
between  his  particular  determination  and  the  social. 

§  246.  Origin  and  Development  of  Property.  Prop- 
erty goes  through  the  same  phases;  being  at  first  collect- 
ive, it  becomes  individual  and  egoistic,  and  finally  tends 
to  take  its  place  in  society  and  the  State.  In  the 
primitive  and  infantile  development  of  law  it  is  not 
possible  to  distinguish  a  "jus  personarum"  from  a  "jus 
rerum"  because  the  childlike  mind,  confusing  and  not 
distinguishing,  established  rules  substantially  identical 
for  both.  The  distinction  began  in  the  days  of  Rome, 
in  which  a  notable  development  of  juristical  thought 
took  place.  Maine,  in  "Ancient  Law,"  criticizes  the 
doctrine  which  recognizes  individual  occupancy  as  the 
method  by  which  the  "res  nullius"  of  the  primitive  world 
became  private  property  in  the  historical  world.  This 
criticism  is  well  founded.  He  gives  two  reasons  for  not 
believing  in  the  doctrine  which  was  then  generally 
acknowledged.  In  the  first  place,  individual  appropria- 
tion presupposes  the  very  fact  of  property  and  the 
extension  of  it  to  a  great  number  of  useful  objects. 
For  it  is  clear  that,  when  possession  is  taken  of  a  "res 
nullius"  (a  thing  which  has  no  owner),  society  allows 
the  possessor  to  become  its  owner  because  it  presumes 
that  everything  useful  should  be  in  the  exclusive  posses- 
sion of  somebody  and  should  be  of  use  to  its  possessor, 
who  has  the  right  of  property  over  it.  In  the  second 
place,  individual  appropriation  is  a  fact  essentially 


ORIGIN  OF  PROPERTY  405 

dependent  on  the  will  and  action  of  an  individual. 
And  it  is  shown  that  primitive  law  is  based  on  the  com- 
munity and  not  on  the  individual.  This  is  proved  by 
the  fact  that  at  first  we  find  collective  property  ac- 
quired by  appropriation  in  mass  and  not  individual 
property.  The  collective  property  of  our  remote  an- 
cestors is  not  the  effect  of  a  sense  of  justice  or  an  in- 
stinctive affirmation  of  the  natural  rights  of  man  and 
the  conception  of  equality,  as  Laveleye  pretends  in 
his  work  "De  la  Propriete  et  ses  Formes  Primitive."1 
It  is  the  consequence  of  two  necessities  (Belot  notes 
this,  too,  in  dealing  with  the  same  subject),  one  a 
natural  development,  the  other  a  product  of  the  social 
state.  In  primitive  times  the  greatest  part  of  the 
earth's  surface  was  neither  cultivated  nor  cultivatable  by 
the  then  imperfect  methods  of  farming.  The  number 
of  inhabitants,  therefore,  in  a  given  district,  could  not 
be  great.  The  division  of  such  land  which  had  no  value 
was  useless;  and,  furthermore,  to  cultivate  it  in  separate 
lots  was  impossible.  The  only  purpose  to  which  it 
could  be  put  was  that  of  a  common  pasture.  The  first 
divisions  were  made  later  by  the  agrarian  communities. 
These  were  the  offspring  of  economic  thought  existing 
as  they  did  at  great  cost  and  labor  in  the  cultivation  of 
arid  lands.  The  land  was  assigned  every  year  by  lot, 
because  of  the  necessity  (when  the  science  of  fertiliza- 
tion was  unknown)  of  letting  the  part  which  had  been 
cultivated  over  lie  fallow  for  several  years,  so  the  annual 
distribution  of  shares  by  lot  was  not  unjust  because  all 
the  land  was  of  the  same  value.  The  state  of  society 
demanded  the  adoption  of  such  a  regime  at  that  time 
for  common  defense,  because  they  were  forced  to  form 
groups  to  preserve  themselves  from  destruction.  The 
history  of  the  colony  of  Nantucket  (a  sandy  island  of 
1  Cf.  §  232  ante. 


406  HISTORY  OF  PROPERTY 

North  America  inhabited  since  1671  by  members  of  a 
small  dissenting  church  persecuted  by  the  Puritans  of 
Massachusetts),  where  the  system  of  the  agrarian  com- 
munities has  been  the  rule,  shows  the  physical  and  eco- 
nomic situation  which  produced  such  a  regime.  Their 
history  teaches  us  that  the  cause  of  collective  property 
is  not  the  sentiment  of  justice,  but  the  impossibility  of 
permanent  allotment  of  lands  of  little  value  which 
cannot  yield  consecutive  harvests  in  any  other  way  that 
necessitates  such  a  regime. 

§  247.  Property  in  Greece.  It  can  no  longer  be 
doubted  that  in  India,  before  the  system  of  caste,  prop- 
erty was  collective.  God  gave  the  land  to  men  for  their 
enjoyment  simply.  They  had  no  existence  apart  from 
the  life  of  the  tribe  or  family.  When  caste  was  in- 
troduced, the  Brahmans  considered  that  God  had  given 
the  land,  which  they  allowed  others  to  use.  Among 
the  Hebrews  the  earth  was  the  Lord's  and  men  were 
strangers  on  it,  to  whom  He  gave  it  as  to  tenants. 
Moses  allotted  the  land  in  perpetuity  to  certain  groups. 
Alienation  could  only  be  temporary.  The  debts  of  the 
Israelites  were  remitted  every  seven  years,  and  every 
forty  years  property  gone  out  of  the  tribe  or  family 
must  gratuitously  be  returned  to  its  ancient  division. 
According  to  Heinnecius  in  "Elementa  Juris  Naturae 
et  Gentium,"  Puchta  in  "Cursus  des  Institutionen," 
Mommsen  in  his  "Romische  Geschichte,"  and  even 
according  to  Laveleye  in  the  book  we  have  cited,1  and 
Viollet  in  his  study  of  primitive  property,  the  ancient 
people  of  Greece  and  Italy  also  passed  through  the  stage 
of  communism.  To  sustain  the  opinion  of  Mommsen 
we  can  cite  among  the  Germans  Niebhur,  Arnold,  and 
Bachofen,  and  in  Italy  Pantaleoni  and  Burtagnolli. 
Lange,  in  his  "Handbuch  der  Romischen  Altertiimer," 

lCf.  "De  la  Proprieteetses  Formes  Primitive,"  cit.  §§  232  and  246  ante. 


STATE  OWNERSHIP  OF  LAND  407 

and  Fustel  de  Coulanges,  in  his  "La  Citi  Antique,"  are 
to  the  contrary. 

§  248.  State  Ownership  of  Land  in  Greece.  In  Greece 
land  was  considered  the  property  of  the  State,  the 
citizens  having  an  interest  subordinate  to  the  general 
right;  and  from  this  conception  came  the  frequent  di- 
visions of  land  and  the  constant  legal  interference  with 
property.  Laveleye  shows  that  Sparta  at  the  time 
when  she  appeared  in  history  had  already  come  out 
of  the  regime  of  primitive  communism  and  had  probably 
reached  that  of  collective  control  of  the  "gens."  The 
constitutional  element  of  society  was  the  y^os,  a  kind 
of  group  of  families  reunited  by  the  tradition  of  a  com- 
mon origin,  together  with  an  inalienable  estate.  Sparta 
possessed  a  vast  domain  including  forests  and  mountains, 
whose  rent  paid  for  the  public  banquets.  Plutarch, 
in  his  life  of  Lycurgus,  says  that  at  the  birth  of  every 
child  the  elders  of  the  tribe  assigned  him  one  of  the 
nine  hundred  lots  belonging  to  the  city,  representing  the 
common  land  which  was  the  family  estate.  The  sale 
of  land  was  forbidden;  its  bequest  prohibited.  Cus- 
tom permitted  a  citizen  to  use  the  horses,  dogs,  and 
utensils  of  any  man  who  did  not  wish  to  use  them.  In 
Athens  Solon  placed  property  under  heavy  limitations, 
probably  the  vestiges  of  primitive  communism.  He 
enacted  that  the  sale  of  a  property  entailed  the  loss 
of  citizenship.  He  imposed  a  progressive  tax.  The 
State  treasury  gave  a  dowry  to  poor  girls  and  furnished 
grain  to  the  needy  and  paid  the  expenses  of  the  senators. 
.  §  249.  Property  in  Rome.  In  Rome  the  earliest  pri- 
vate property  was  personal  and  not  real,  probably  con- 
sisting of  slaves  and  cattle.  The  ancient  "mancipatio," 
the  general  form  of  sale,  applied  primarily  to  things 
which  the  vendee  could  take  in  his  hands.  Land  was 
common,  called  "ager  publicus."  It  became  greatly 


408  HISTORY  OF  PROPERTY 

increased  by  successive  conquests.  The  farmstead  of 
remoter  days  ("heredium")  was  little  more  than  the  en- 
closure of  the  Germans,  containing  about  an  acre.  With 
the  Romans  as  with  the  Greeks,  the  ass  and  the  ox  were 
mediums  of  exchange  and  units  of  value.  Now  it  is 
not  possible  to  admit  that  while  the  land  was  individ- 
ual property  cattle  were  a  means  of  exchange,  because 
the  wherewithal  to  feed  them  could  not  be  found.  If 
the  ox  and  the  ass  were  receivable  in  payment,  the 
greater  part  of  the  land  must  have  been  common  pas- 
turage. There  was,  however,  in  Italy  and  Greece,  a 
tradition  of  a  Golden  Age  in  which  private  property  was 
not  thought  of.  As  it  agrees  with  the  economic  history 
of  humanity,  this  tradition  should  not  be  considered 
mere  poetic  fiction.  Diodorus  Siculus  narrates  that  the 
Greeks  of  the  Liparus  lived  with  common  property 
in  the  land.  Aristotle  wrote  that  there  remained  some 
trace  of  ancient  communism  of  land  in  Tarentum  even 
in  his  day.  Porphyry  and  Jamblichus  (in  writing  the 
life  of  Pythagoras),  say  that  in  Magna  Grsecia  there 
were  two  thousand  people  who  established  a  political 
state  under  the  Pythagorian  regime  of  the  community 
of  wealth.  Trusting  to  the  statement  of  Porphyry,  it 
seems  possible  to  conclude  that  some  of  the  Italian 
cities  of  the  Middle  Ages  arose  in  like  manner.  Is  it 
not  possible  that  with  the  name  and  exploits  of  Pytha- 
goras there  were  mixed  some  historical  traditions  of  the 
community  of  wealth  in  Magna  Graecia?  Another  argu- 
ment can  be  based  on  the  many  institutions  of  public 
banquets  scattered  throughout  Italy  and  Greece,  and 
on  the  constant  allusions  of  ancient  writers  to  an 
ancient  division  of  land  and  on  the  necessity  of  the 
consent  of  the  whole  social  body  for  the  sale  of  land  to 
a  foreigner,  a  consent  necessary  in  Turin  and  Greece. 
As  to  Rome  this  necessity  took  the  general  form  of  the 


COMMON  OWNERSHIP  OF  LAND         409 

"cessio  in  jure," — full  testimony  of  the  absolute  owner- 
ship of  the  State.  Lastly  the  primitive  prohibition  on 
the  alienation  of  land  (certainly  introduced  from  Greek 
law,  and  probably  from  Italian  custom),  the  absence  of 
testamentary  power  at  the  time  of  which  we  speak,  and 
later  the  exclusion  of  women  from  the  inheritance 
(because  upon  marrying  they  would  have  transferred 
part  of  their  property  to  another  family)  constitute 
new  evidence  to  confirm  the  opinions  of  Mommsen 
and  the  others. 

§  250.  Common  Ownership  of  Land  Exists  in  Many 
Countries.  In  some  provinces  of  India,  about  the  fourth 
century  before  Christ,  the  land  was  cultivated  in  com- 
mon with  a  division  of  the  fruits  at  harvest.  To-day  the 
Indian  villages  still  possess  as  undivided  property  in  the 
forests  and  uncultivated  land;  the  arable  land  is  no 
longer  common.  In  China  there  were,  in  primitive  times, 
communities  which  assigned  a  convenient  part  of  the 
land,  but  the  remainder  was  entrusted  to  those  who 
could  cultivate  it.  But  about  two  and  a  half  centuries 
before  Christ,  the  families  of  the  cultivators  divided 
the  arable  land  among  themselves  according  to  the  num- 
ber of  noses;  a  tenth  part  was  cultivated  for  the  profit 
of  the  State.  To-day  the  emperor  is  the  principal  land- 
owner of  the  Empire.  Diodorus  speaks  of  an  agrarian 
community  living  on  the  coast  of  Arabia  who  rewarded 
their  members  according  to  the  merits  of  each,  assigning 
to  the  better  farmer  the  greater  part  of  the  harvest. 
Among  the  Germans  there  was  the  "mark,"  or  common 
territory  of  the  clan,  of  which  a  small  extent  was  the 
object  of  private  occupancy  during  the  year.  But  the 
hereditary  property  included  only  the  house  and  its 
enclosure.  Analogous  to  the  "mark"  is  the  " bland -el- 
djemaa"  of  the  Arabs.  The  Gauls  had  separate  farms 
and  individual  estates,  assigned  each  year,  however,  by 


410  HISTORY  OF  PROPERTY 

the  magistrates  among  the  clans  or  family  living  together. 
In  Egypt,  in  the  time  of  Pharaoh,  the  land  belonged  to 
the  sovereign.  The  Mussulman  laws  have  preserved  the 
same  principle.  Among  the  aborigines  of  America  the 
same  system  of  collective  property  prevailed. 

§  251.  Examples  Still  Extant  of  Primitive  Property 
among  Uncivilized  People.  There  are  still  some  ex- 
amples of  primitive  property  among  uncivilized  people 
which  serve  to  make  us  better  understand  it,  because 
one  of  the  qualities  of  our  mind  is,  as  Vico  says,  that 
men  cannot  obtain  a  full  idea  of  distant  and  but 
slightly  known  things,  yet  present  and  known  examples 
will  make  the  object  clearer.  In  Russia  the  land  does 
not  belong  to  the  crown  or  to  the  nobles,  but  is  the 
undivided  property  of  the  community  or  "mir."  The 
community  is  the  owner  of  the  soil  and  the  individ- 
uals have  only  the  temporary  use  of  it.  There  is  no 
private  ownerhsip  of  land  except  the  ground  upon  which 
the  house  is  built  and  the  garden  annexed  to  it. 
These  are  hereditary.  They  divide  the  land  among 
themselves,  coming  together  in  an  assembly  for  the 
purpose.  In  Java  the  owner  of  the  soil  is  God,  and 
consequently  his  representative  upon  earth,  or  the  sover- 
eign, the  "dessa"  or  community,  has  the  use  of  the  soil 
and  distributes  it  yearly  among  its  members.  Private 
and  hereditary  property  in  Java  extends  to  the  house 
and  enclosure,  as  among  the  Romans,  Germans,  and 
Russians.  In  the  Island  of  Pelew  the  individual  is 
the  owner  of  his  personalty,  of  his  house  and  boat; 
the  king  is  the  owner  of  the  land  and  gives  its  use  to 
his  subjects.  In  the  Caroline  Islands  there  is  a  regime 
of  relative  community.  Land  in  central  Africa  belongs 
to  the  community  or  the  head  who  represents  it. 
Among  the  native  Americans,  the  land  intended  for 
hunting  and  fishing  belongs  to  the  tribe.  In  Peru  prop- 


ANCIENT  EUROPE  411 

erty  is  governed  by  a  system  of  patriarchical  and 
authoritative  communism.  In  Mexico  there  was  a  feudal 
regime  founded  on  the  ultimate  ownership  of  the 
emperor.  Cattle  are  more  or  less  common  property 
among  the  nomadic  pastoral  Mongols.  And  habits  of 
communism  are  extensive  and  deep-rooted  among  the 
Tartar  tribes  in  Mongolian  Asia.  The  system  of  com- 
munism is  still  in  full  force  among  the  aboriginal  tribes 
of  India.  In  certain  provinces  of  Spain,  Altmarck,  in 
all  ancient  Scandinavia,  Denmark,  and  Jutland,  among 
the  ancient  Bretons  and  Afghans,  in  Wallachia  and 
several  other  regions  we  find  village  communities. 

§  252.  Examples  from  Ancient  Europe.  In  primitive 
Switzerland  the  "allmenden"  or  communal  property 
included  the  forest,  grazing,  and  cultivated  land.  To 
have  a  right  to  a  share  in  its  enjoyment,  it  was  necessary 
above  everything  else  to  be  a  resident  of  the  commune, 
to  have  the  right  of  political  citizenship,  and  also  to  be 
descended  from  a  family  which  had  enjoyed  such  rights 
from  time  immemorial,  or  at  least  for  a  century.  The 
"allmende"  was  found  before  the  "mark"  in  southern 
Germany,  and  consisted  of  the  common  property  in 
woods,  meadows,  and  cultivated  lands,  the  usufruct  of 
which  went  to  the  individuals  of  the  family.  In  Am- 
sterdam the  common  land  of  the  clan  or  "mark"  was 
observed.  Cognate  institutions  are  the  "almaenning" 
of  Sweden,  the  "aldmindiger"  of  Norway,  and  the  "town- 
ship" of  Scotland,  which  recognized  the  common  prop- 
erty in  the  soil,  its  distribution  in  certain  portions,  and 
private  property  in  the  house  and  enclosure.  The 
communal  estates  of  Belgium  and  France  reproduce 
in  varied  forms  and  fragmentary  ways  the  types  of 
collective  property  in  the  soil.  These  consist  of  land 
occupied  by  an  association  of  citizens  free  from  private 
appropriation  and  dedicated  to  the  general  needs  of 


412  HISTORY  OF  PROPERTY 

the  association  or  the  particular  needs  of  the  associates. 
The  communal  property,  writes  Venezian  in  his  book 
"Reliquie  della  Proprieta  Collettiva  in  Italia,"  goes 
back  to  the  very  first  state  of  the  group  of  the  family  or 
tribe  which  instituted  agriculture  in  place  of  pasturing. 
Pastoral  communities,  with  the  meadows  given  over  to 
alternate  enjoyment  under  certain  periodical  distribu- 
tions of  land,  with  the  forests  and  the  communal  lands, 
indicated  by  such  names,  over  which  the  private  citi- 
zens had  special  rights,  give  evidence  of  the  survival  of 
archaic  property.  This  can  be  seen  to-day  in  parts 
of  Portugal  and  in  not  a  few  places  in  Spain  and  Italy, 
as  shown  by  latter-day  studies.  Among  the  Italians 
there  are  still  in  the  "marches"  institutions  very  simi- 
lar to  the  collective  property  of  Switzerland,  that  is, 
the  "allmende."  These  are  called  "communanze," 
"universita,"  "consorzi  di  famiglia,"  belonging  to  the 
"marches'"  and  existing  even  before  the  Roman  Age  as 
Valenti  proved  in  "La  Proprieta  Collettiva  nell'  Ap- 
pennino  Marchigiano."  In  Fruilia  and  the  ancient 
Duchy  of  Modena  we  can  still  find  extensive  traces  of 
archaic  property  in  communal  goods.  And  in  general 
throughout  the  peninsula  there  are  traces  of  ancient 
servitudes  of  fishing,  selling  sod,  sowing,  and  taking 
firewood  from  the  property  of  the  community  and  the 
citizens.  According  to  some  there  are  traces  as  well  of 
"usi  civici"  of  the  Southern  provinces.  In  regard  to 
these  "usi  civici"  in  several  of  the  provinces  of  Italy,  we 
should  note  that  they  are  exercisible  not  only  over  prop- 
erty of  the  nature  of  crown  lands  but  also  over  all 
private  property  called  allodial  or  "burgensatische." 
The  property  belonging  to  the  crown  was  of  various 
kinds;  in  fact  in  mediaeval  Italy  imperial  crown  lands 
were  granted  as  feuds  which  became  either  feudal  do- 
mains or  ecclesiastical  or  communal  (so-called  public) 


POLYNESIA  AN  EXCEPTION  413 

property.  All  these  different  domains  were  subject  to 
the  "usi  civici,"  which  constituted  an  inalienable  and 
indefeasible  right  if  they  were  granted  by  the  sovereign 
power;  whence  it  could  be  said  "nee  per  regem  tolli 
possunt."  Much  erudite  inquiry  has  been  spent  upon 
the  historical  formation  of  these  domains  in  which  an 
estate  in  the  fullness  of  private  control,  by  the  influence 
of  Roman  law,  was  subjected  "pro  bono  publico"  to  a 
great  number  of  rights  designed  to  provide  the  citizens 
with  the  "necessaria  vitee  subsidia."  The  Neapolitan 
jurists  were  of  the  unanimous  opinion  that  these  do- 
mains were  "jure  naturae,"  subject  to  the  civic  uses 
"ne  cives  vitam  inertem  ducerent  et  ne  fama  perirent." 
It  seems  clear  that  Neapolitan  estates  of  this  kind 
were  created  by  the  abandonment  of  private  property 
at  the  time  of  the  fall  of  the  Roman  Empire;  so  they 
can  be  considered  more  as  a  return  to  the  ancient  com- 
mune than  a  relic  of  Rome. 

§  253.  Polynesia  Shows  an  Exception  to  the  Rule. 
In  Melanesia  and  Polynesia  we  find  individual  property 
in  land  though  they  are  hardly  out  of  the  state  of  tribal 
community.  In  Australia,  New  Caledonia,  at  Viti  and 
Tahiti,  there  is  not  a  sufficient  development  of  civilized 
conditions  to  justify  the  appearance  of  private  property, 
since  the  social  state  is  still  in  its  infancy.  Nevertheless 
this  kind  of  property  has  arisen,  making  a  notable  excep- 
tion to  the  rule  of  the  primitive  world.  The  rule  of 
common  ownership  is  applicable  to  land  and  not  to 
personalty  or  the  house  and  enclosure  in  which  the  indi- 
vidual character  of  the  person  is  first  shown.  But  it  can- 
not be  applied  to  land  when  there  is  no  game  in  the  place 
occupied  by  the  tribe,  which  necessitates  pursuit  over 
great  distances,  but  where  reptiles,  the  lava  of  insects, 
fish,  and  roots  are  in  abundance.  In  this  case  there  is  no 
need  of  a  large  expanse  of  common  territory  because 


414  HISTORY  OF  PROPERTY 

there  is  no  hunting,  but  it  is  more  expedient  to  keep  the 
individual  in  his  part  of  the  land  without  freeing  it  from 
the  eminent  domain  of  the  tribe,  exercised  by  the  head, 
as  in  the  countries  before  mentioned.  The  inapplicabil- 
ity of  the  rule  cannot  be  said  to  be  absolute  on  account 
of  the  eminent  domain.  As  long  as  man  lives  by  the 
chase,  by  fishing  and  gathering  wild  fruit,  he  considers 
the  object  taken  or  produced  by  his  own  hands  as  his  own 
and  has  no  thought  of  the  appropriation  of  the  soil. 
Property  in  land  limited  to  the  space  covered  by  the  flock 
of  the  tribe  makes  its  first  appearance  in  the  pastoral 
r6gime.  The  idea  of  individual  property  in  the  soil  does 
not  appear  even  in  the  agricultural  regime ;  the  property 
is  still  in  the  tribe ;  the  arable  lands,  meadows,  and  forests 
are  cultivated  in  common.  Later  the  cultivated  land  is 
divided  into  parts  by  lot  among  the  families  who  give  in- 
dividuals the  temporary  use  of  it,  but  the  whole  preserv- 
ing its  character  of  collective  property  of  the  tribe,  to 
which  it  returns  from  time  to  time  to  be  redivided.  The 
parts,  as  time  goes  on,  remain  in  the  hands  of  different 
patriarchal  groups  who  occupy  the  same  land  again  and 
again.  Thus  the  system  of  common  possession  and 
periodic  division  falls  into  disuse;  the  land  becomes  the 
hereditary  and  inalienable  estate  of  the  family.  When 
repeated  fertilization  and  advance  in  agriculture  has 
made  a  richer  soil,  it  can  be  easily  understood  that  land 
is  left  fallow  for  a  very  short  time.  The  assignments  are 
at  first  made  by  each  group  for  three  years,  in  which 
the  cultivator  works  on  the  land,  improves  it,  and  leaves 
the  mark  of  his  activity  on  it,  but  it  becomes  always 
more  difficult  to  separate  the  various  groups  from  their 
territory,  and  periodic  distribution  begins  to  be  made 
every  six,  nine,  or  ten  years.  Less  and  less  frequent 
become  the  new  divisions  and  greater  the  injustice  of 
taking  land  which  has  increased  in  value  through  the 


FAMILY  COMMUNITIES  415 

application  of  labor  and  capital  from  those  who  labored 
on  it.  In  this  we  see  the  economic  motive  for  the  end  of 
the  periodic  division  of  land.  In  all  this  advance  the  law 
of  evolution  is  active,  because  there  is  an  increasing  divi- 
sion or  specification,  all  tending  from  the  unformed  homo- 
geneity of  the  tribe  to  the  marked  heterogeneity  of  the 
family.  The  heads  of  the  latter  cannot  dispose  by  will 
of  the  hereditary  portion,  for  that  always  belongs  to  the 
family,  but  they  are  owners  of  their  saving  and  of  what 
they  made  by  the  labor  of  their  hands.  Women  are 
excluded  from  ownership  of  land  because  it  otherwise 
through  marriage  would  constantly  be  transferred  from 
one  family  to  another.  They  can  have  dowry  from 
the  private  property.  In  some  aristocratic  forms  of  the 
family  community  there  are  family  trusts;  in  others 
the  control  is  given  to  the  eldest.  In  them  the  possessor 
and  the  "primogenitus"  are  regarded  as  having  the 
use  of  the  inalienable  and  indivisible  property  of  the 
family. 

§  254.  Ancient  Family  Communities.  The  family 
communities  date  back  to  the  Indians  and  Semites. 
The  associated  family  in  India  was  a  large  corporation 
of  relatives  maintained  to  an  indefinite  number  of  gen- 
erations having  as  its  object  the  communal  methods  of 
support,  the  cultivation  of  land,  and  the  preservation 
of  the  cult.  It  had  for  its  chief  the  "primogenitus"  of  the 
eldest  branch,  or  if  he  was  not  of  sufficient  ability,  some 
elected  relative.  The  chief  was  not  the  "paterfamilias" 
or  "dominus,"  but  simply  the  administrative  head. 
Caesar  in  speaking  of  the  Germans  said  that  none  owned 
land,  but  the  head  or  magistrate  distributed  it  every  year 
among  the  families,  "cognationes  hominum,  qui  una 
coierunt."  Among  the  Germans  there  was  a  "condo- 
minium in  solidum"  in  the  family  growing  out  of  the 
active  and  passive  unity  of  relations  (as  is  shown  in  the 


416  HISTORY  OF  PROPERTY 

obligation  of  "faida"  or  "vendetta,  "and  in  that  of  paying 
tax  or  "wehrgeld"  due  to  all  the  relatives  of  the  victim). 
This  unity  is  still  clearer  shown  with  the  "mundium" 
and  the  hereditary  possession  on  which  the  maxim  is 
founded:  the  dead  enfeoff  the  living.  All  the  relatives 
were  owners,  and  therefore  there  was  some  community  of 
possession.  When  the  "munduald"  died,  those  who 
had  been  under  his  power  either  became  heads  of  the 
house  or  remained  subjects  of  the  new  "munduald," 
to  whom  there  was  an  instantaneous  transmission  of 
the  goods  under  the  "mundium."  The  members  of  such 
a  community  elected  a  chief  who  governed  the  family 
with  the  advice  of  its  members  and  exercised  an  execu- 
tive power.  By  the  side  of  the  "mayor"  or  master 
there  was  a  "mayorissa,"  also  elected,  who  took  care 
of  the  domestic  economy.  The  Irish  "sept,"  a  kind  of 
corporation  of  relatives  of  an  industrial  and  agricultural 
nature,  whose  existence  depended  on  the  occupancy 
of  the  land,  was  very  like  the  associate  family  of 
India.  No  component  of  the  "sept"  could  alienate  his 
hereditary  part  except  in  urgent  necessity  and  with 
the  consent  of  all,  but  he  could  dispose  of  the  cap- 
ital gained  by  labor.  This  is  the  rule  in  the  Indian 
and  Russian  communities.  The  absolute  control  of  the 
tenant  in  "rundale"  in  Ireland  gave  emphasis  to  the 
"mark,"  because  a  section  of  country  was  occupied 
by  family  groups,  the  arable  land  was  divided  and 
changed  possession  by  temporary  assignment,  and  the 
pasture  was  common.  A  like  mode  of  tenure  is  observ- 
able among  the  Highlanders  in  Scotland.  In  Ireland 
the  hereditary  farm  was  governed  by  the  rules  of  "gavel- 
kind,"  by  which  upon  the  death  of  the  owner  of  a  farm, 
which  was  part  of  the  "sept,"  the  head  made  a  new 
division  of  all  the  lands  of  the  corporation,  adding  to  the 
shares  of  the  different  families  the  inheritable  property 


FAMILY  COMMUNITIES  417 

of  the  descendant.  Such  institutions  tended  to  keep 
relative  equality  among  the  associate  owners  as  long  as 
periodical  division  was  kept  up.  In  Slavonia,  Croatia, 
Servia,  the  Coastal  States,  Bosnia,  Bulgaria,  Dalmatia, 
and  Herzegovina,  we  can  still  find  that  form  of  com- 
munity called  by  the  Germans  "hauskomunion,"  and  by 
the  Slavs "zadruga"  or  "druzina."  The  chief  of  Slavs,  the 
"gospodar"  or  "starchina,"  chosen  by  the  members  of  the 
community,  has  the  executive  power,  although  the  legis- 
lative power  belongs  to  the  community  itself;  he  is  the 
guardian  of  minors,  and  represents  the  family  in  the  courts 
and  before  foreigners.  He  is  assisted  by  a  woman,  also 
elected,  whose  duty  is  the  direction  of  household  affairs. 
The  family  is  a  civil  person ;  its  estate  is  indivisible.  There 
is,  therefore,  no  inheritance  of  real  estate,  yet  person- 
alty is  inheritable  because  each  of  the  members  of  the 
family  is  allowed  to  get  together  his  own  herd.  Sons 
have  a  right  to  a  part  of  the  products  of  the  land,  not 
through  heredity,  but  because  of  a  personal  right  or  of 
participation  in  the  work  upon  the  common  property. 
The  right  to  dispose  of  land  by  sale  or  will  is  not  allowed 
as  long  as  any  member  of  the  family  is  alive.  A  daugh- 
ter can  receive  her  dowry  but  has  no  right  to  claim  part 
of  the  real  estate.  Even  in  Italy  there  are  traces  of  this 
kind  of  tenure  which  have  combined  (as  Jacini  says) 
with  the  system  of  leasing  for  a  share  of  the  crop.  The 
associations  of  this  kind  in  northern  Italy,  especially  in 
Lombardy,  are  composed  of  four  or  five  families  living 
together  in  a  house  situated  on  a  large  estate.  They  rec- 
ognize the  authority  of  a  "reggitore"  and  "massara." 
The  "reggitore"  sells,  buys,  and  invests  the  savings  and 
directs  the  work  with  the  advice  of  the  associates;  the 
domestic  cares  are  given  over  to  the  "massara."  And 
here  we  should  mention  the  two  institutions  of  the 
"homestead"  and  "hoferecht."  The  first,  begun  in 


418  HISTORY  OF  PROPERTY 

Texas  in  1839  and  then  extended  to  most  of  the  States 
in  the  Union,  is  a  law  that  forbids  creditors  from 
sequestering  the  farmstead  of  the  family,  on  which 
the  family  has  actually  established  its  home,  for  it  is 
the  home  which  the  law  protects.  It  is  necessary  that 
there  be  an  inhabited  house  on  the  land  granted. 
The  other  institution  of  "hoferecht"  (a  German  and 
Austrian  institution)  takes  from  the  hereditary  assets 
a  part  of  the  land  called  the  family  inheritance,  which 
pass  in  their  entirety  to  a  privileged  heir.  Both  insti- 
tutions consequently  propose  to  preserve  a  part  of  the 
domestic  property,  declared  such  by  the  head  of  the 
family  and  recognized  as  such  by  the  law  and  by  out- 
siders, and  to  insure  the  permanence  of  the  family. 

§  255.  Disbelief  in  the  Theory  of  the  Priority  of 
Collective  Property.  Belot  wishes  to  show  (especially 
against  Laveleye)  that  private  ownership  of  land 
preceded  the  collective.  He  thinks  that  property  has 
not  descended  from  the  tribe  to  the  family  and  from 
the  family  to  the  individual,  but  that  the  family  is  a 
union  of  individuals  and  the  tribe  a  union  of  families. 
Collective  property  is  only  the  extension  of  individual 
property  to  a  family  more  or  less  large.  The  father 
of  the  family,  as  the  head  or  absolute  king,  was 
originally  the  owner  of  the  house  and  enclosure. 
This  property  was  necessary  to  the  defense  of  the 
family  and  the  preservation  of  the  domestic  relig- 
ion. The  "gens"  and  the  village  (a  growth  of  the 
family)  possessed  a  common  property  presupposing  the 
original  individual  property  of  the  ancestor.  We  can  see 
in  the  Island  of  Nantucket  that  twenty-seven  colonists 
began  to  distribute  among  themselves  the  land  neces- 
sary for  the  construction  of  their  houses  and  the  forma- 
tion of  enclosures,  and  have  kept  in  common  only  the 
pasture  and  cultivated  land.  Such  is  the  system  that 


THE  THEORY  OF  PRIORITY  419 

must  have  been  in  vigor  in  primitive  times.  The  col- 
lective property  of  agricultural  associations  of  the  Middle 
Ages  was  created  by  grants  of  individual  property.  The 
agrarian  communities  of  Russia  originated  in  conces- 
sions by  the  nobility;  consequently  the  community  of  the 
serfs  inhabiting  a  village  is  subsequent  to  private  prop- 
erty. Now  the  opinion  of  Belot  is  opposed  to  the  law  of 
evolution  as  it  refers  to  property  and  family.  Nor  is  it 
based  on  solid  arguments.  Aucoc  in  "Caractere  Collectif 
des  Premieres  Proprietes  Immobilieres"  notes  that  the  ex- 
amples given  by  Belot  are  of  a  date  long  after  the  primi- 
tive ages  when  private  control  of  land  was  established  in 
its  entirety,  nearly  contemporaneous  with  the  agrarian 
communities  of  which  he  speaks.  Belot  did  not  examine 
the  origin  of  the  agricultural  communities  of  the  Middle 
Ages  or  distinguish  the  association  of  the  serfs,  to  escape 
the  death  tax,  from  the  association  of  free  men.  Prob- 
ably he  would  have  found  a  different  origin  of  collective 
property  in  the  two  kinds  of  communities  if  he  had  dis- 
tinguished them  clearly.  Without  doubt  he  makes 
clear  that  the  colonists  of  Nantucket  did  not  invent  the 
constitution  of  private  and  collective  property  in  their 
island,  but  reproduced  the  old  Scotch  custom  of  "lauder," 
which  has  an  extremely  archaic  form  according  to  Maine. 
Such  a  custom,  according  to  Maine  and  Belot,  is  the  type 
of  the  most  ancient  uses  of  Germanic  property  and  culture. 
But  it  is  difficult  to  admit  that  the  Germans  have  not 
passed,  in  a  remote  age,  through  a  nomadic  state  before 
reaching  the  condition  in  which  Tacitus  found  them, 
who  spoke  of  their  neighbors  without  arms,  horses, 
houses,  or  agriculture.  How  had  these  people  and  the 
Germans  passed  from  the  nomadic  state?  If  Belot  had 
studied  the  phases  of  property  among  the  Arab  tribes 
of  Algeria,  the  transition  would  have  been  clear.  Some 
of  the  Arab  tribes  are  still  in  a  nomadic  state,  covering 


420  HISTORY  OF  PROPERTY 

great  distances  with  their  herds.  Others  are  nomads 
only,  within  a  limited  space,  and  are  occupied  both  with 
cattle  and  the  cultivation  of  the  soil,  but  live  in  tents 
and  have  no  fixed  habitation.  Other  tribes,  near  cities, 
know  of  the  advance  in  agricultural  methods  in  culti- 
vation and  irrigation.  They  have  permanent  houses, 
and  in  these  tribes,  side  by  side  with  the  public  domains, 
there  are  the  "melk"  and  "arch"  lands.  The  first  are  pri- 
vate property  and  have  a  family  character,  for  a  member 
of  the  family  can  annul  their  sale,  reimbursing  a  foreign 
purchaser.  In  the  second,  which  form  the  greater  part, 
for  a  long  time  the  tribe  has  had  a  simple  right  of  enjoy- 
ment. These  facts  have  the  double  advantage  of  being 
contemporaneous  and  of  existing  in  a  society  which  has 
remained  in  an  almost  primitive  condition,  and  show 
how  people  pass  from  the  nomadic  to  the  sedentary  state, 
and  how  the  property  of  the  tribe  is  transferred  little 
by  little  to  the  family  and  the  individual. 

§  256.  Christianity  Developed  Individuality.  Chris- 
tianity shows  the  value  of  the  individual,  the  image 
of  God,  and  recommends  work,  the  source  of  produc- 
tion, and  sacrifice  which  is  the  origin  of  thrift  and 
of  that  universal  brotherhood  economically  realized 
through  the  universality  of  interests.  It  is  true  that  at 
first  Christian  teaching  preferred  poverty  and  a  life  of 
charity;  it  is  true  that  it  looked  upon  wealth  as  the 
means  to  the  fulfillment  of  beneficence  and  charity, 
tending  towards  the  spontaneous  community  of  goods: 
but  we  cannot  fail  to  recognize  that  the  new  religion  did 
not  have  many  followers  in  a  world  which  was  still 
pagan,  and  for  that  reason  at  first  abhorred  all  that 
could  offend  its  purity  by  any  connection  with  the 
worldly  pleasures  and  sensual  inclinations  of  the  pre- 
ceding age.  At  this  time  Christianity  opposed  to  the 
law  of  the  flesh  that  of  the  spirit,  to  worldly  wisdom 


THE  FEUDAL  SYSTEM  421 

superhuman  virtue,  to  the  terrestrial  city  the  City  of 
God,  and  social  fraternity  and  spontaneous  common 
ownership  to  the  egoism  of  the  Roman  landowner  with 
his  "plena  potestas  in  re"  and  his  quality  of  "moderator 
et  arbiter."  This  abhorrence  began  to  disappear  through 
the  contact  of  the  new  opposite  terms,  by  which  the 
world  was  Christianized  and  the  Christian  religion  was 
made  even  too  mundane.  Barbarian  individualism  con- 
tributed not  a  little  to  this  transformation  and  to  the 
development  of  personality  made  sacred  by  the  religion 
of  Christ  preventing,  as  Guizot  says,  society  after  the 
orgy  of  pagan  egoism  from  losing  itself  through  the 
ascetic  spirit  of  communism  in  the  depth  of  a  limitless 
abnegation. 

§  257.  The  Feudal  System  was  Individualistic.  The 
feudal  system,  derived  from  the  subordination  of  pub- 
lic office,  of  territorial  jurisdiction  and  seigniority  to 
the  category  of  private  law,  that  is,  to  the  laws  of 
property,  family,  and  inheritance,  was  the  emanation 
of  the  personal  principle.  The  grantee  of  land  had 
control  over  it;  the  control  was  at  first  temporary,  then 
hereditary,  and  ultimately  acquired  the  character  of  a 
family  possession  which  could  be  transferred  and  trans- 
mitted with  the  rights  of  alienation  and  subinfeudation. 
First  in  the  feudal  system  are  the  figures  of  the  grantor 
and  grantee,  and  therefore  the  right  of  private  property 
connoting  jurisdiction.  In  this  entered  all  the  social 
elements,  even  the  more  spiritual,  and  from  this  the 
worldliness  of  the  religious  idea  was  increased  through 
the  temporalities  of  the  Church,  now  grown  into  a  com- 
plete and  powerful  hierarchy.  The  feudal  system  was  a 
vast  hierarchy  which  undertook  to  correct  the  erring 
existence  of  the  people  of  Europe  and  to  give  it  a  fixed 
order  and  develop  individual  energy  in  their  estates  and 
castles  reinvigorating  the  bonds  and  ties  of  the  family. 


422  HISTORY  OF  PROPERTY 

This  hierarchy  was  strong  enough  to  establish  a  chain  of 
limitations  on  the  power  of  princes  and  monarchs, 
although  it  denied  the  principles  of  liberty  and  equality. 
Vico  teaches  that  the  feudal  system  was  a  reflux  and 
that  there  is  an  eternal  law  of  feuds.  To  many  the 
idea  has  seemed  false  because  advances  and  reflexes 
destroy  history  (that  does  not  presuppose  simple  con- 
tinuity, but  mutability)  and  do  not  show  the  proper  and 
true  character  of  acts  and  institutions.  Certain  it  is 
that  the  feudal  system,  as  organized  in  the  Middle  Ages, 
was  never  seen  before  and  will  never  be  seen  again. 
The  feudal  system,  understood  in  its  entirety  and  in  its 
historical  development,  is  not  a  reflex,  though  its  primary 
elements  can  be  found  in  the  earliest  antiquity,  espe- 
cially among  the  customs  of  the  primitive  Aryans.  In 
this  aspect  Vico  is  right.  Its  idea  appears  as  a  great 
intuition  which  has  hardly  shown  all  its  richness  in  our 
days  when  it  commences  to  be  developed  by  analysis 
and  with  the  aid  of  erudition  in  comparative  and  critical 
history.  Maine,  among  all  the  moderns,  has  come 
nearest  to  the  Neapolitan  philosopher  (whom  he  does 
not  quote  and  of  whom  perhaps  he  was  ignorant). 
The  feudal  system  according  to  the  English  writer  had 
its  beginning  in  Roman  emphyteusis,  in  the  limitrophic 
camps,1  in  patronage  and  the  primitive  customs  reintro- 
duced  into  Europe  by  the  Germans.  The  great  patri- 
cians possessed  large  estates  cultivated  by  bands  of  slaves 
directed  by  other  slaves  or  freemen.  Such  a  system 
was  harmful  to  the  interests  of  Italian  municipalities, 
whose  representatives,  often  changing,  were  not  in  a 
position  to  take  care  of  the  cultivation  of  extensive 
domains.  The  municipalities  began,  therefore,  to  make 
perpetual  grants  of  land  to  free  cultivators  who  must 
pay  a  fixed  rent  and  fulfill  certain  conditions.  The 

1Vide,  Maine,  Ancient  Law,  10th  Ed.,  p.  309. 


VILLAGE  COMMUNITIES  423 

example  was  followed  by  private  owners  and  the  grantees 
became  subject  to  a  right  almost  equal  to  that  of  owner- 
ship. Thus  the  bands  of  slaves  were  transformed  into 
groups  of  colonists  or  rural  serfs  who  owed  the  patron 
a  portion  of  the  crops  produced.  In  the  great  forests 
along  the  Rhine  and  the  Danube  there  were  limitrophic 
camps1  occupied  by  Roman  veterans  who  held  them 
from  the  State  by  emphyteusis  with  the  duty  of  respond- 
ing to  military  calls.  Patronage  relied  on  gratitude, 
respect,  and  aid,  which  really  are  duties  of  a  vassal 
towards  his  lord. 

§  258.  Feuds  Come  from  the  Village  Communities. 
Among  the  Germanic  customs  and  institutions,  the 
division  of  society  into  compact  groups  of  families  and 
classes  is  notable.  The  family  is  administrated  by  the 
eldest  member  or  one  elected  in  his  stead.  The  classes 
are  governed  by  a  member  of  the  dominant  family. 
Tacitus  observed  that  among  the  Germans  the  chief 
received  from  the  king  cattle  and  grain  as  a  recompense. 
The  companions  of  a  chief  lived  with  him  and  received 
a  horse  and  their  weapons,  as  is  the  rule  to-day  at  the 
court  of  a  Kaffir  chief  in  South  Africa.  The  chiefs  were 
rich  in  cattle,  perhaps  on  account  of  their  military 
operations,  but  they  did  not  have  sufficient  pasturage. 
On  the  other  hand,  the  people  lacked  capital  to  apply 
to  the  cultivation  of  the  land;  whence  the  necessity  of 
taking  cattle  from  the  chief  and  of  becoming  his  man 
and  of  rendering  him  services  and  homage  besides  paying 
rent.  The  scarcity  of  capital  makes  us  understand  why 
in  remote  antiquity  everything  depended  on  the  oli- 
garchs. In  Athens  the  people  were  slaves  to  debt. 
In  Rome  the  plebeians  were  heavily  bound  to  the 
patricians.  In  Germany  the  influence  of  the  equites, 
borne  witness  to  by  Caesar,  grew  with  the  quantity  of 

1  Vide,  Maine,  Ancient  Law,  10th  Ed.,  p.  309. 


424  HISTORY  OF  PROPERTY 

debtors.  In  such  an  unfortunate  state,  there  is,  however, 
an  eternal  law  of  re-accommodation  that  was  one  of 
the  causes  of  the  feudal  system.  The  very  word  "feud" 
is  derived  from  an  ancient  gothic  word  "fihu"  or  "fiu," 
meaning  cattle,  the  chief  source  of  wealth  in  primitive 
times.  The  bull  was  sacred  in  India  and  a  "res  mancipi" 
in  Rome;  the  word  capital  comes  from  "caput"  and  means 
horned  beasts  counted  by  heads.  When  the  population 
multiplied  and  conquests  grew  enormously,  gifts  of 
land  took  the  place  of  the  assignment  of  cattle  or  gifts 
of  arms,  and  therefore  the  idea,  associated  at  first  with 
personal  grants,  continued  probably  to  refer  to  land. 
Originally  a  feud  related  more  to  the  State  than  to  owner- 
ship. The  lord  was  the  /ScwiXeCs,  the  king;  the  freed 
men  formed  the  yepowia,  the  senate  or  counsel;  the  vil- 
lains represented  the  mass  of  the  people  who  had  under 
them  the  slaves.  The  seigniorial  court  was  the  ancient 
assembly  of  the  village  which  was  concerned  chiefly 
with  the  administration  of  justice.  Other  questions  of 
general  interest  were  discussed  under  the  presidence  of 
the  lord  and  peers  of  the  manor.  The  villains  were  pres- 
ent as  a  crowd  at  the  deliberations.  The  tribute  at 
first  had  the  character  of  a  tax  and  took  the  place  of 
the  ancient  subsidies  paid  by  the  administration  of  the 
little  village  communities.  The  overlord  answered 
for  the  feud  and  was  the  administrator  and  governor. 
The  land  belonged  to  him  only  in  part  and  he  received 
the  rent  from  the  lords  of  different  rank.  Immedi- 
ately under  him  came  free  lords  who  rendered  him  mili- 
tary and  honorable  service  and  were  obliged  to  follow 
him  in  war.  The  greater  part  of  the  soil  was  occupied 
by  the  villains  who  owed  the  lord  every  kind  of  service 
and  could  not  abandon  their  land  or  inheritance  without 
his  consent.  The  law  in  theory  gave  the  lord  the  prop- 
erty in  the  villains'  personalty.  The  whole  organism 


PERSONAL  PRINCIPLE  DESTROYED      425 

reproduced  in  its  fundamentals  the  type  of  village 
community  although  modified  in  not  a  few  parts.  The 
chief  difference  between  the  feud  and  such  a  community 
consists  in  the  substitution  of  private  authority  for 
common  power.  What  the  lord  could  do,  that  could 
be  done  by  the  head  of  the  village  and  the  council  of 
the  elders.  The  chief  and  elders  were  responsible  to 
the  community  but  the  lord  succeeded  in  being  the 
owner  of  the  soil. 

§  259.  The  Personal  Principle  Reinstated  by  the 
Reformation  was  Again  Destroyed.  The  Reformation 
destroyed  the  ecclesiastical  hierarchy  and  allowed  the 
direct  reconciliation  of  man  and  God  and  the  inter- 
pretation of  the  divine  word  by  the  individual,  and 
went  back  to  the  rights  of  the  spiritual  personality. 
The  enemy  of  the  intermediary  and  the  hierarch  and 
inspired  by  the  principle  of  individual  personality, 
the  Reformation  opposed  the  hierarchical  system  of 
ownership.  In  this  opposition  it  was  aided  by  Roman 
law  which  did  not  recognize  other  title  to  land  than  that 
derived  from  the  free  disposition  of  the  owner.  Feudal- 
ism had  made  the  king  the  supreme  lord;  the  jurists 
appealed  to  the  traditions  of  imperial  Roman  law 
exaggerating  the  signification  of  royal  power  and 
changing  it  into  the  eminent  domain  of  the  prince  in 
order  to  destroy  feudal  bonds.  Later,  in  another 
struggle  between  the  despotism  of  the  king  and  the 
ancient  regime,  the  eminent  domain  was  given  to  the 
nation.  Property  was  placed  upon  the  basis  of  the  per- 
sonal principle,  and  in  confirmation  of  such  a  principle 
proclaimed  by  the  French  Revolution,  it  was  regu- 
lated by  a  civil  code.  This  principle,  brought  to  light 
by  the  Reformation,  demonstrated  by  natural  law 
and  shown  by  study  of  Roman  law  with  respect  to  real 
rights,  was  emphasized  by  industrial  labor  which 


426  HISTORY  OF  PROPERTY 

created  personal  property.  The  limitations  of  the  "fidei 
commissus"  and  of  primogeniture  disappeared.  We  can 
no  longer  find  the  trace  of  eminent  domain;  the  right 
to  hunt  over  the  estate  of  the  peasants  has  been  de- 
stroyed; the  rules  about  cultivation  and  harvest  have 
been  done  away  with;  and  the  abolition  of  the  rights 
of  use,  pasture,  woodbote,  the  last  vestiges  of  the  primi- 
tive communism,  have  begun.  Privileges  are  becoming 
rarer.  Estates  are  divided.  The  right  of  the  co-heir  to 
demand  partition  is  recognized.  Hereditary  equality 
in  personalty  and  realty  is  enforced.  Land  is  demo- 
cratic. Legislation,  however,  has  not  yet  completed 
the  work  and  does  not  apply  democratic  principles  to 
all  kinds  of  property,  to  goods,  for  example,  though 
of  less  importance  than  land  in  the  doctrine  of  the 
physiocratic  school,  according  to  which  agriculture  alone 
furnishes  a  net  product  and  all  the  other  industries  are 
unproductive.  Personalty  brings  men  closer  together, 
cements  their  union,  promotes  fraternity  and  close 
relations,  feeds  those  who  cannot  gain  their  living  from 
the  soil,  and  is  a  protection  for  the  individual,  who  can 
remove  from  the  vexatious  or  absorbing  action  of  the 
State  by  emigrating  with  his  goods  and  chattels.  On  the 
contrary,  ownership  of  land  binds  a  man  to  the  soil, 
obliges  him  to  apply  his  activities  to  it,  gives  him 
a  house  and  isolates  him,  and  is  a  sign  of  subjec- 
tion and  obedience.  Goods  and  chattels,  connected 
in  the  most  immediate  and  sensible  way  with  the 
individual,  were  at  first  tangible,  such  as  weapons, 
clothes,  and  other  utensils.  They  preceded  property 
in  the  soil  and  were  well  developed  among  the  Ger- 
mans who,  proud  of  individual  autonomy,  favored 
their  circulation  with  the  maxim  that  possession  is  nine 
points  in  the  law.  This  maxim  means  that  voluntary 
delivery  of  a  thing  made  by  one  who  is  not  its  owner 


MODERN  INDIVIDUALISM  427 

to  another  in  good  faith  gives  him  property  in  it.  The 
free  cities  showed  in  history  great  progress  in  art,  manu- 
facture, and  commerce,  and  therefore  a  notable  in- 
crease in  personal  property,  to  which  the  return  of  the 
Crusaders  loaded  with  merchandise  and  precious  objects 
(and  cured  of  all  illusion  of  finding  their  divinity  in  a 
sepulchre)  contributed  largely.  A  century  thereafter 
this  kind  of  property  was  immensely  increased  by  the 
progress  of  production  aided  by  development  in  mechan- 
ics and  freedom  of  work.  It  constitutes  a  highly  variable 
and,  as  it  were,  a  capricious  kind  of  wealth,  observes 
Rossi,  and  tends  to  become  the  most  important.  Despite 
the  irregularities  of  their  movement,  goods  and  chattels 
were  raised  to  a  high  level  and  will  be  raised  higher 
still.  A  strenuous  and  prudent  organization  of  industry, 
commerce,  transportation,  and  credit  is  what  our  social 
state  demands.  Like  the  results  of  all  of  the  revolu- 
tions, these  facts  have  in  themselves  both  good  and  ill; 
a  prosperous  future  if  the  publicists,  economists,  and 
legislatures  fix  their  attention  on  them,  one  of  incal- 
culable misfortune  if  they  neglect  them. 

§  260.  Modern  Individualism.  The  evolution  of 
property  is  connected  with  complete  individualization 
which,  left  to  itself  and  deprived  of  the  necessary 
modifying  influence,  leads  to  an  orgy  of  selfishness 
and  consequently  to  the  savage  destruction  of  poverty. 
When  the  individual  becomes  the  beginning  and  end 
of  everything,  the  State  becomes,  small  and  is  only 
a  means  of  defense  of  the  individual  and  his  belongings. 
As  in  the  ancient  world  society  absorbed  the  individual, 
so  to  a  certain  extent  in  modern  times  the  individual  has 
absorbed  society.  Individualism,  however,  in  our  day, 
has  described  a  parabola  and  is  almost  exhausted.  A 
new  theory,  which  has  gained  ground  in  political  doc- 
trines, makes  for  the  harmony  of  the  ancient  notion  of 


428  HISTORY  OF  PROPERTY 

the  social  community  with  the  principle  of  personal  free- 
dom. The  doctrine  regards  the  community,  and  there- 
fore the  family  and  the  State,  as  ethical  organisms,  the 
one  within  the  other,  in  which  the  parts  live  the  life  of 
the  whole  but  have  also  their  own  value  and  personality 
as  well.  Man  in  the  abstract  and  concrete,  in  virtue  of 
such  a  doctrine,  beccmes  cause  and  effect,  reciprocal 
means  and  end;  the  individual,  the  family,  and  the 
State  in  their  medial  quality  have  duties,  in  their  ulti- 
mate quality  have  rights.  It  is  clear  that  this  concep- 
tion once  accepted,  atomism  should  be  disregarded  even 
in  the  sphere  of  property.  The  defeat  of  atomism  does 
not  mean  the  negation  of  individual  personality,  because 
the  period  is  beginning  in  which,  having  developed  and 
tried  to  withdraw  from  society,  it  re-enters,  takes  its 
place,  and  recognizes  its  subordination  to  the  organism 
as  a  whole.  True  evolution,  we  must  repeat,  is  not 
only  individualization,  but  growing  correlation,  so  that 
property  remaining  individual  should  not  be  egoistic, 
but  should  obey  social  aims  in  a  system  of  rational 
limitations  conforming  to  the  historical  condition  of  the 
people.  One-sided  and  erroneous  are  the  ideals  of  the 
individualist  and  the  socialist,  for  one  sees  only  in  evo- 
lution the  abstract  tendency  to  progressive  particularity 
and  the  other  loses  sight  of  the  diverse  aspects  of  this 
progress  in  the  material  world  and  only  notices  the 
object  of  the  whole  and  organic  correlation  of  the  parts. 
§  261.  Primitive  Means  of  the  Acquisition  of  Property. 
The  means  of  acquisition  in  primitive  society  were 
very  difficult  and  complex  because  the  relations  estab- 
lished were  not  between  individuals  but  between  organ- 
ized social  bodies,  between  the  diverse  communities 
existing  in  the  midst  of  the  tribe.  An  individual  in  that 
age  did  not  acquire  rights  and  duties  by  himself,  but 
as  the  head  of  a  society  or  family.  The  methods  of 


ACQUISITION  OF  PROPERTY  429 

acquisition,  since  the  mind  lived  in  sensations  and 
images,  lay  in  ceremonies,  rites,  and  symbols,  and  de- 
manded the  presence  of  a  great  number  of  witnesses. 
The  inherent  difficulties  were  overcome  one  by  one. 
Maine  shows  the  methods  with  truth  and  precision. 
The  first  method  of  conquering  this  difficulty  was ,  the 
division  of  property  into  categories.  The  goods  of  a 
higher  category  were  those  first  known;  those  after- 
wards learnt  were  in  a  lower  category.  Those  of  higher 
category  were  acquired  with  difficult  and  solemn  methods. 
They  were  the  "res  mancipi,"  to  which  the  "manci- 
patio"  applied.  The  others  of  the  lower  category,  the 
"res  nee  mancipi,"  were  transferred  by  the  natural  and 
easy  method  of  "traditio."  The  methods  for  the  acqui- 
sition of  property  of  the  second  category  were  facile 
and  suitable,  and  consequently  they  were  soon  extended 
to  goods  of  the  higher  category.  At  the  time  of  Justinian 
"traditio"  was  enough  to  pass  property  in  the  "res 
mancipi."  Here  we  must  destroy  an  illusion  of  the  later 
Roman  jurisconsults,  who  generalized  from  their  own 
time  and  believed  that  "traditio"  was  older  than 
"mancipatio,"  while  in  fact  the  "traditio"  only 
dominated  after  the  "mancipatio"  had  lost  its  force. 
Gaius  says,  "Quarundam  rerum  dominium  nanciscimur 
jure  gentium  quod  ratione  natural!  inter  omnes  homines 
perseque  servatur  quarundum  jure  civili.  Et  quia  an- 
tiquius  jus  gentium  cum  ipso  genere  humano  proditum 
est,  opus  est  ut  de  hoc  prius  referendum  sit."  Besides 
the  distinction  of  goods  by  categories  or  kinds,  there 
was  another  means  of  distinction  of  later  origin.  In 
India  the  father  could  alienate  inherited  goods  only  with 
the  assent  of  his  sons,  but  could  freely  dispose  of  goods 
acquired  through  his  own  industry.  In  Rome  a  son  had 
free  disposition  of  money  earned  in  the  army.  Among 
the  Germans,  free  and  allodial  land  was  difficult  of  aliena- 


430  HISTORY  OF  PROPERTY 

tion.  To  allodial  land  succeeded  feudal  land,  and  then 
there  only  remained  the  distinction  between  land  and 
goods  recognized  by  Roman  law,  although  of  not 
so  much  importance  as  the  distinction  between  "res 
corporales"  and  "res  incorporales."  In  the  Middle  Ages 
land  was  thought  more  of  than  goods,  which  acquired 
thus  great  importance  and  the  laws  referring  to  it 
tended  to  become  absorbing  because  wealth  was  con- 
verted into  personalty. 

§  262.  Modern  Distinction  of  Land  and  Goods.  Mod- 
ern legislation  considers  the  division  of  land  and 
goods  as  fundamental,  but  we  must  inquire  if  this 
is  admitted  by  rational  laws  Zacharia  thinks  that  it 
lies  entirely  in  positive  law  because  he  conceives  rational 
law  within  the  boundaries  of  subjective  rationalism, 
which  deduces  everything  from  the  category  of  thought 
separating  it  from  the  exteriority.  Such  confines  being 
overcome,  and  starting  with  the  principles  of  natural 
law  founded  on  objective  rationalism,  we  come  to  a 
different  conclusion  because  the  object  is  what  urges 
the  faculty  to  act  and  in  the  object  the  act  terminates  and 
is  quiet,  as  Rosmini  says.  Every  right  is  a  power  over 
an  object  which  determines  its  bounds  according  to  its 
nature.  The  nature  of  the  object  is  the  basis  of  the 
diversity  of  rights,  as  the  natural  differences  of  men 
constitute  the  base  of  the  differences  of  persons.  Puchta 
teaches  that  in  all  external  things  law  singles  out  what 
they  have  in  common,  their  essence,  which  is  subject 
to  law.  The  right  over  a  thing  itself  is  the  same 
whether  it  treats  of  land,  animals,  plants,  or  anything 
whatsoever.  But  this  natural  diversity  was  not  foreign 
to  law  that  makes  a  difference  between  land  and 
goods,  between  rural  and  urban  property,  between 
wild  and  domestic  animals,  etc.  The  question  arises, 
when  the  speculative  suggestion  is  raised,  whether  the 


MEANS  FOR  ACQUISITION  431 

modern  division  is  primary  or  secondary,'  fundamental 
or  not.  Rational  law,  it  must  be  admitted,  prefers  the 
Roman  classification  of  objects  into  corporeal  and 
incorporeal,  because  both  land  and  goods  are  cor- 
poreal. The  Roman  classification  is  objective  as  well 
as  the  modern,  and  at  the  same  time  it  has  the  advantage 
of  being  logically  primary,  apart  from  any  discussion 
as  to  the  practical  or  jurisprudential  value  of  the  one 
or  the  other.  It  places  material  things,  real  or  personal, 
on  one  side,  and  on  the  other  the  rights  which  are  also 
useful  and  permutable  external  objects  of  financial 
value.  The  ambiguity  arises  in  confusing  what  is 
incorporeal  with  what  is  intrinsic  to  the  mind  or  person. 
Now  what  is  incorporeal  is  not  intrinsic  or  inseparable 
from  the  ego.  A  patent  right,  for  example,  is  certainly 
incorporeal  but  extrinsic;  it  is  part  of  one's  estate  and 
can  be  the  object  of  exchange. 

§  263.  Other  Means  for  Rendering  Acquisition  More 
Easy.  Other  means  of  conquering  the  inherent  diffi- 
culty in  the  methods  of  primitive  acquisition  are  found 
in  prescription,  equity,  and  civil  procedure.  Prescription 
offers  the  advantage  of  curing  with  years  the  defects  of 
a  title  of  acquisition  and  of  reuniting  the  possession  and 
property.  Equity  and  the  courts  produce  later  another 
important  ad  vantage.  The  owner  "jure  quiritium"  could 
take  advantage  of  the  "rei  vindicatio"  to  defend  his  pos- 
session. The  proceeding  was  formal,  long,  and  solemn; 
and  with  time  the  need  of  a  summary  procedure  was 
felt  and  the  defense  of  possession  was  allowed  through  the 
"interdictum,"  which  originally  referred  to  the  "habere 
in  bonis."  The  purity  of  procedure  thus  was  hurt,  but 
society  gained  thereby  a  quick  and  easy  means  of  pro- 
tection. The  "in  jure  cessio,"  a  kind  of  fictitious  sale 
similar  to  the  lease  and  release  of  the  common  law, 
offered  greater  facility  in  transfer  because  the  old  owner 


432  HISTORY  OF  PROPERTY 

did  not  defend  against  the  action  of  sale  brought  by 
the  vendee  and  the  judge  "addicebat  rem."  Finally  we 
must  note  that  methods  of  transfer  of  property  in  the 
primitive  period  were  public  because  the  land  belonged 
to  the  tribe,  the  village  community,  or  family, —  collec- 
tive and  strongly  organic  entities.  Even  when  the  land 
belonged  to  an  individual,  society  reserved  important 
rights  (and  among  these  the  power  of  authorizing  aliena- 
tion) because  it  always  wanted  to  keep  foreigners  from 
the  native  soil.  The  ancient  "mancipatio"  bears  witness 
to  the  original  publicity  of  acquisition.  Public,  too, 
was  the  alienation  of  allodial  lands.  After  centuries, 
the  principle  of  publicity  reappears  and  obtains  again 
to  greater  extent  for  a  different  reason;  that  is,  for  the 
protection  of  the  rights  of  third  parties. 


COLLECTIVE  OWNERSHIP  433 


CHAPTER  VI 
PREDIAL   PROPERTY    IN   THE    SOIL 

COLLECTIVE  OWNERSHIP  OF  LAND.  — WAGNER'S  THEORY  OF 
THE  OWNERSHIP  OF  MANUFACTORIES.— SPENCER'S  THEORY  ON 
THE  OWNERSHIP  OF  LAND.  —  PRIVATE  OWNERSHIP  OF  LAND 
AND  RENT.— THE  DOCTRINES  OF  HENRY  GEORGE  AND  OF 
LORIA  AS  TO  LAND. 

§  264.  Collective  Ownership  Disappears  upon  the 
Development  of  Work.  The  less  civilized  people  who 
have  not  a  well  developed  conception  of  the  right 
of  property  allow  private  ownership  of  weapons,  clothes, 
and  ornaments,  because  work  confers  on  these  objects 
a  value  apart  from  that  of  the  raw  material.  Tribes 
that  live  by  the  chase  recognize,  as  a  general  rule, 
that  the  property  in  animals  belongs  to  him  who 
has  killed  or  wounded  them.  In  the  life  of  semi- 
nomadic  races,  property  in  the  soil  is  collective,  but 
the  products  are  given  to  the  cultivators.  When 
civilization  begins,  the  principle  of  private  property,  as 
the  result  of  man's  acts,  becomes  more  marked  and 
extended.  The  application  of  communism  to  the 
products  of  the  activity  of  the  group  or  individual  is 
contrary  to  the  most  elementary  ideas  of  justice. 

§  265.  Ownership  of  Land  Subject  to  Same  Rational 
Law  as  Goods.  There  are  some  writers  who  think  that 
all  the  economic  and  juristic  reasons  for  private  property 
in  goods  have  no  value  in  regard  to  land.  These  writers 
belong  to  the  school  of  territorial  collectivism  and  are  not 
of  one  accord  among  themselves,  some  denying  individual 


434        PREDIAL  PROPERTY  IN  THE  SOIL 

property  in  houses,  others  limiting  the  application  of 
their  theory  to  land.  Wagner,  for  example,  is  not  in 
favor  of  private  property  in  houses,  and  exchanges  the 
conception  of  control  of  property  by  the  State  for  that 
of  absorption.  He  starts  out  with  the  principle  that 
private  property  is  a  loan  entrusted  by  the  State  to 
individual  administration,  and  that  when  rents  go  up 
the  State  has  the  right  of  re-appropriation.  Between 
urban  and  rural  property  there  are,  according  to  Wagner, 
two  important  differences;  a  city  house  once  built,  the 
owner  does  not  expend  any  labor  and  for  many  years 
is  put  to  no  expense,  while  the  countryman  must 
expend  labor  and  capital  every  year.  The  exceptional 
gain  received  by  the  householder  when  there  is  an 
excessive  crowding  of  people  into  a  determinate  space  is 
much  greater  than  that  of  the  owner  of  the  richest  soil. 
Wagner  is  right  in  making  these  two  differences;  he  is 
wrong  only  in  considering  private  property  as  a  loan  to 
the  citizens  by  the  State,  denying  the  right  of  the  indi- 
vidual, who  makes  his  impress  on  the  object  and  makes 
it  a  projection  of  himself.  The  State  can  and  even 
should  limit  this  right,  but  not  absorb  it,  for  in  absorb- 
ing it,  it  does  not  recognize  the  human  essence  in  the 
individual  and  degrades  him  to  the  position  of  a  simple 
instrumentality.  It  is  true  that  capital  is  the  moving 
factor  in  urban  property,  but  capital  is  the  work  of 
yesterday,  as  work  is  the  capital  of  to-morrow,  and  in 
capital  there  is  the  activity  of  man;  and  as  a  product 
of  such  activity  it  should  be  respected.  The  State,  in 
cases  of  an  exaggerated  increase  in  rent,  can  lessen  the 
taxes  or  in  a  thousand  ways  urge  the  erection  of  new 
buildings,  can  even  erect  them  itself,  and  above  all  has 
the  power  of  appropriation,  if  necessary,  but  appropria- 
tion should  never  be  as  general  as  the  property,  and 
should  not  be  connected  with  the  erroneous  idea  of  a 


SPENCER'S  COLLECTIVISM  435 

loan  by  the  State.  Here  we  should  be  careful  not  to 
confuse  two  very  different  things,  that  is,  unjust  monop- 
oly with  the  possession  of  things  incapable  of  indefinite 
multiplication.  The  first  is  an  artificial  and  unreason- 
able restriction  of  the  freedom  of  production  and  should 
be  destroyed ;  the  second  is  in  no  wise  connected  with 
true  monopoly  because  it  furnishes  a  return  dependent 
upon  the  change  in  value,  and  not  upon  individual  will. 
It  is  clear  that  the  normal  value  of  property  capable  of 
free  and  indefinite  multiplication  is  shown  by  the  cost 
of  production,  because,  if  the  product  brings  more  than 
it  costs,  competition  will  reduce  the  price  in  a  gradual 
and  progressive  manner,  and  if  the  cost  of  production 
is  more  than  its  value,  the  supply  will  decrease,  because 
no  one  will  do  business  at  a  loss.  But  the  normal  value 
of  goods  of  limited  quantity  such  as  houses  and  land  is 
determined  by  the  combination  of  supply  and  demand; 
these  two  are  not  capable  of  indefinite  increase.  This 
kind  of  property  ordinarily  brings  more  and  sometimes 
much  more  than  its  value,  if  the  cost  of  production 
expresses  its  true  minimum  value,  as  in  the  hypothesis 
discussed  by  Wagner.  We  cannot  say,  however,  that 
their  possession  has  a  fictitious  value  in  order  to 
destroy  it  by  a  forced  appropriation,  inasmuch  as  it  is 
the  result  of  the  legitimate  connection,  physical  and 
moral,  of  individuals  with  free  or  legally  acquired  objects. 
In  other  words,  there  is  no  contradiction  between  the 
conception  of  private  property  and  that  of  the  limiting 
laws  of  nature,  as  we  will  see  in  the  next  paragraph. 

§  266.  Spencer's  Collectivism.  Spencer,  in  his  "Social 
Statics,"  says  that  private  ownership  of  land  is 
unjust.  Given  a  species  of  beings,  he  says,  who  have 
equal  right  to  enjoy  the  full  scope  of  their  tenden- 
cies, given  a  world  made  for  the  satisfaction  of  their 
needs,  it  is  easily  deducible  that  each  of  these  beings 


436        PREDIAL  PROPERTY  IN  THE  SOIL 

has  a  right  to  enjoy  the  good  things  of  the  world. 
If  each  is  free  to  do  what  he  wishes,  provided  that  he 
does  not  offend  another's  freedom,  each  is  free  to  take 
natural  gifts  for  the  satisfaction  of  his  needs,  provided 
always  that  he  respects  the  same  rights  in  his  fellows. 
The  converse  of  the  proposition  is  clearly  that  no  one 
can  use  land  so  as  to  impede  an  equal  use  on  the  part 
of  others.  Justice,  therefore  (concludes  Spencer) ,  does 
not  recognize  individual  property  in  the  soil.  If  we  admit 
that  a  portion  of  land  can  be  the  domain  of  one  man, 
the  other  portions  can  be  occupied  under  a  similar  title  and 
so  the  whole  face  of  the  globe  would  fall  into  the  hands  of 
some  individuals.  The  rest  of  mankind  would  live  by  the 
toleration  or  good  grace  of  the  exclusive  proprietors.  The 
arguments  of  Spencer,  identical  in  the  main  with  those 
of  all  the  writers  who  believe  in  territorial  and  complete 
collectivism,  are  reducible  to  Fichte's  proposition  and  con- 
tain the  same  error.  It  is  undeniable  that  all  men  have 
an  inherent  right  to  property  and  that  things  are  made 
for  all.  There  can  be  no  doubt  that  it  is  the  duty  of 
society  and  the  State  to  recognize  and  protect  the  full 
play  of  such  essential  rights  in  a  human  being.  But 
this  inherent  right  of  property  is  simply  potential,  and 
so  should  be  realized  and  transformed  into  the  right  of 
property.  Every  man  has  the  right  to  take  advantage 
of  natural  gifts,  physical  forces,  and  the  soil,  but  no  one 
has  a  particular  right  over' the  external  world  unless  he 
has  applied  his  activity  to  it.  If  he  has  not  made  some- 
thing, if  he  has  not  acted  and  thereby  taken  away  the 
abstract  equality  and  created  a  reason  for  special  juristic 
privilege,  the  State  should  not  act  for  him  and  create  a 
reason  for  a  privilege,  because  the  inherent  rights  of  man 
become  acquired  by  the  act  of  the  individual  himself, 
whose  power  and  faculty  are  in  question.  An  individual 
can  exercise  his  natural  right  of  property  by  applying 


SPENCER'S  COLLECTIVISM  437 

his  action  to  the  soil  or  in  the  sphere  of  manufacture, 
industry,  or  commerce.  The  State  is  only  obliged  to 
insure  him  conditions  for  the  development  of  individual 
activity,  and  is  in  no  wise  called  upon  to  help  him  by 
giving  him  the  wherewithal.  We  must  not  forget  that 
land  is  of  limited  quantity  and  that  at  one  time  it  was 
not  sufficient  for  all,  and  that  the  means  of  existence  are 
not  won  from  it  alone,  but  from  the  arts,  industries,  and 
commerce  as  well.  Spencer  finally  contradicts  himself 
because  he  says  that  industrialism  promotes  the  devel- 
opment of  private  property  and  that  common  property 
in  the  soil  is  destined  to  reappear  when  industrialism 
shall  have  reached  the  height  of  its  development.  How 
is  this  possible,  if  industrialism,  opposed  to  the  mili- 
tary system,  signifies  progressive  differentiation  and  the 
presence  of  individuality,  contract,  and  voluntary  co- 
operation? Spencer,  seeing  the  contradiction,  writes 
that  industrialism  has  not  actually  reached  its  definite 
position,  and  that  we  will  have  another  phase  in  which 
private  property  in  land  will  disappear.  As  there  have 
been  centuries  in  which  the  property  of  one  man  in 
another  was  admitted,  which  right  with  the  advance  in 
civilization  was  denied,  so  in  the  future,  when  industrial- 
ism has  received  broader  development,  private  property 
in  land  will  cease.  But  in  his  last  book,  "Justice,"  he 
has  no  longer  the  same  strong  faith,  although  he  says 
that  he  is  still  convinced  that  the  human  aggregation 
is  the  owner  of  the  soil.  He  believes  military  systems 
have  been  a  constant  cause  of  the  loss  of  personal  liberty, 
the  introduction  of  slavery,  and  even  the  destruction  of 
collective  property.  He  adds  that  side  by  side  with  the 
decline  of  the  military  belief  and  with  the  development 
of  industrialism,  he  sees  personal  liberty  grow  stronger 
and  stronger,  and  that  we  will  soon  be  forced  to  a  parti- 
tion of  land.  If  land  should  again  become  common, 


438        PREDIAL  PROPERTY  IN  THE  SOIL 

justice  would  demand  indemnification  for  the  actual 
private  possessors.  These  possessors  are  not  all  descend- 
ants of  the  first  occupiers  and  usurpers,  but  many  of 
them  have  gained  possession  through  derivative  methods 
of  acquisition,  and  at  the  same  time  not  a  few  members 
of  the  proletariat  are  descended  from  the  original 
usurpers.  Society  has  a  right  to  have  the  land  back 
again  as  it  was  in  the  primitive  state,  but  cannot  appro- 
priate what  the  possessors  have  expended  throughout 
centuries  in  labor  and  capital  for  ploughing,  improving, 
and  cultivating.  We  would  have  to  pay  enormous  sums 
in  such  indemnity  and  in  the  end  we  would  undergo 
a  loss  paying  more  in  indemnity  than  the  value  of  the 
land.  To  this  indemnity  we  should  enter  also  the  sum 
spent  by  the  landowners  for  the  assistance  of  the  masses, 
for  this  sum  represents  a  part  of  the  product  of  the  so- 
called  private  land.  The  re-transference  of  land  to  society 
would  produce  a  state  of  affairs  perhaps  worse  than  the 
actual  state  through  the  control  of  "bossism,"  and  the 
administration  by  the  State,  the  worst  form  from  an 
economic  aspect.  Spencer  concludes  that  a  more  pro- 
found examination  of  the  arguments  induces  him  to 
adopt  the  opinion  that  it  is  better  to  maintain  private 
property  in  land,  merely  subjecting  it  to  the  sovereignty 
of  the  State.  This  change  of  front  on  the  part  of  the 
English  philosopher  is  very  noteworthy. 

§  267.  Private  Property  is  Economic.  Once  admitted 
that  private  property  is  based  on  the  personal  principle, 
economic  sciences  bring  out  its  useful  side.  The  use- 
ful, it  is  well  to  remember,  is  no  stranger  to  law 
because  it  constitutes  the  material  therefor.  The  dis- 
tribution of  wealth  has  for  its  base  (and  its  only  base) 
the  right  of  property  referring  interest,  profit,  and  rent 
to  property  in  the  capital  and  land,  showing  the  con- 
nection between  capital  and  labor.  If  there  were  not 


PRIVATE  PROPERTY  ECONOMIC         439 

individual  and  stable  property,  there  would  be  very 
much  less  stimulus  to  production  and  accumulation, 
because  man  would  not  feel  the  fervor  of  work  when 
he  was  not  sure  of  enjoying  its  fruits  and  of  leaving 
them  to  those  who  .after  his  death  would  continue  his 
personality.  It  is  incontestable  that  agriculture  pre- 
supposes exclusive  possession  of  land,  at  least  from  the 
time  of  planting  to  that  of  harvest,  as  it  is  not  pre- 
sumable that  any  man  would  sow  so  that  another  might 
reap.  The  alternation  of  crops,  so  necessary  to  the 
productivity  of  fields  (to  which  it  restores  strength),  is 
an  object  of  "ars  longa,"  requiring  long  possession.  The 
most  active  cultivator  must  invest  large  sums  to  make 
but  little  profit.  This  is' not  possible  without  certainty 
of  the  future.  It  is  not  possible  for  any  power  to 
determine  the  point  in  which  the  return  from  land  be- 
comes usurious  because  in  farming,  as  in  life,  to-day 
is  a  continuation  of  yesterday,  and  the.  beginning  of 
to-morrow,  and  there  is  a  cycle  of  production  recom- 
mencing with  each  new  accumulation  of  capital.  Exclu- 
sive and  continuous  possession  of  the  soil  is  the  first 
law  of  civilization  and  heredity,  and  is  a  form  of  the 
connective  tissue  in  the  social  organism,  as  Lampertico 
observes  in  his  book,  "La  Proprieta."  With  the  estab- 
lishment of  private  property  we  cannot  fail  to  have 
increased  production;  with  the  increased  quantity  of 
wealth  the  State  acquires  a  great  economic  impulse, 
and  is  enabled  thus  to  better  and  more  fully  take  care 
of  the  social  welfare.  Private  property  in  favor  of  con- 
sumers allows  the  competition  of  producers  which  would 
be  non-existent  or  restricted  under  a  collective  system. 
§  268.  Socialistic  Communism.  Socialists  of  a  few 
years  since  said  that  property  in  land  was  the  usurpa- 
tion of  the  rights  of  the  chase,  pasturage,  and  harvest; 
those  of  to-day  repeat  the  same  accusation  under  a 


440        PREDIAL  PROPERTY  IN  THE  SOIL 

different  form,  maintaining  that  land,  minerals,  and  wild 
beasts  cannot  belong  to  anyone  because  they  are  not 
the  result  of  human  labor.  This  is  very  true  as  long 
as  the  things  have  no  real  value,  as  long  as  the  handi- 
work of  man  does  not  appear  in  them,  as  long  as  he  does 
not  place  the  stamp  of  his  individuality  upon  them,  but 
when  such  an  impress  is  made,  then  value  is  created 
and  property  cannot  fail  to  arise.  To  produce  is  not  to 
create,  and  even  Marx,  in  his  work  "Das  Kapital,"  cites 
lengthily  from  Verri  to  show  that  all  the  phenomena  of 
the  universe  do  not  give  us  the  conception  of  the  crea- 
tion but  only  that  of  modification  of  matter,  and  that 
man  can  only  unite  and  separate  natural  elements. 
Now  the  so-called  usurpation  of  the  first  occupant  does 
not  take  away  but  gives  land  to  others,  because  it  takes 
less  space  for  a  family  to  live  by  agriculture  than  by 
hunting  and  nomadic  pasturing.  The  collectivists  main- 
tain that  in  the  system  of  private  ownership  of  land 
humanity  is  rendered  tributary  to  a  few  privileged  per- 
sons and  they  wish,  for  the  benefit  of  humanity,  the  col- 
lective forces  and  machinery  reserved  for  the  profit  of  the 
laboring  classes.  But  it  appears  to  us  that  there  is  not 
a  shadow  of  tribute  where  the  products  are  exchanged 
for  products,  because  tribute  is  a  value  without  an  equiva- 
lent. But  industrial  products  are  exchanged  for  agri- 
cultural products  of  equal  value  and  consequently  there 
can  be  no  tribute.  To  hold,  therefore,  that  the  collective 
forces  and  machinery  should  belong  exclusively  to  the 
laboring  class  is  only  to  confess  destructive  tenden- 
cies and  biassed  hopes  while  one  is  declaiming  for 
humanity,  society,  collectivism,  etc. 

§  269.  Rent  Arises  from  the  Work  Expended  on  the 
Land.  Socialists  are  opposed  to  private  property,  basing 
their  arguments  on  the  rent,  due  to  the  owner  of  the 
land  not  dependent  upon  labor  and  capital.  If  this. 


RENT  ARISES  FROM  WORK  441 

surplus  is  a  gift  from  God  it  should  be  gratuitous, 
they  say,  and  cannot  be  the  object  of  individual  appro- 
priation. Property  in  this  aspect  is  robbery,  and  rent  a 
monopoly.  Not  a  few  economists,  with  Bastiat  at  their 
head,  wishing  to  make  the  cause  of  property  threatened  by 
such  an  attack  secure,  resolutely  denied  the  right  to  rent, 
and  taught  that  the  cooperation  of  the  natural  forces  of 
land  is  gratuitous  and  should  remain  gratuitous  in  the 
system  of  property,  because  it  does  not  enter  into  the 
price  which  the  consumer  pays  the  owner.  He  receives 
with  the  payment  what  he  has  invested  in  capital  and 
labor  in  the  land  and  nothing  further.  The  socialists 
and  economists  have  not  reflected  that  goods  acquire  an 
economic  character  only  when  they  are  part  of  a  limited 
quantity.  The  true  sources  of  wealth  are  those  which 
satisfy  needs  and  are  exchangeable  and  alienable.  Alien- 
ability demands  that  the  thing  be  external  to  the  grantor, 
acquirable  by  man  and  of  limited  quantity,  because  if 
they  were  inseparable  from  the  person  and  if  the  man 
could  not  possess  them,  exchange  would  be  impossible; 
thus  also  if  their  number  were  such  that  everyone  could 
have  them  at  any  time  without  labor.  The  law  of  limita- 
tion, illustrated  by  Cossa  in  "Elementi  di  Economia" 
and  his  memoirs,  arises  more  or  less  in  all  branches  of  pro- 
duction, because  natural  forces  are  not  distributed  equally 
but  differ  in  quality  and  quantity,  and  also  because  of  the 
abundance  and  scarcity  of  capital  and  labor;  the  relation 
between  fixed  and  circulating  capital,  between  manual 
and  intellectual  labor,  determine  an  industry  by  their 
variances.  When  one  speaks  of  goods  capable  of  an 
indefinite  increase  one  does  not  disregard  the  law  of 
limitation,  because  these  goods  are  only  relatively 
unlimited,  in  comparison  with  others  of  a  more  limited 
quantity.  The  products  of  manufacture,  capable  of 
multiplication  quicker  than  crops,  belong  to  the  first 


442       PREDIAL  PROPERTY  IN  THE  SOIL 

category,  although  their  multiplication  meets  its  limit  in 
water,  air,  coal,  or  wind.  From  the  divers  combinations 
of  qualities  and  quantities  of  these  limits  arises  the 
fluctuation  of  prices  in  general  and  of  rent  in  particular. 
Rent  can  be  seen  more  clearly  in  the  property  of  arable 
land  and  of  factories,  because  these  show  more  clearly 
the  law  of  limitation.  It  can  be  seen  constantly  where 
there  is  an  oversupply  not  due  to  capital  and  labor  but 
to  the  coexistence  of  productions  of  the  same  kind,  which 
demand  varying  expenditure  in  production.  The  most 
expensive  production,  where  the  cheaper  cannot  meet 
the  demand,  shows  the  average  value.  Rent  is  the  sur- 
plus of  the  producer  on  whom  the  least  expense  of  pro- 
duction falls.  It  is  derived  from  natural  and  artificial 
elements.  These  latter  can  be  incorporated  in  the  object, 
for  example,  in  the  soil,  in  such  a  way  as  not  to  constitute 
a  distinct  capital.  The  situation,  the  richness  and  fer- 
tility of  the  soil  are  natural  elements,  but  the  hand  of  man 
and  work  of  civilization  are  not  foreign  to  it,  because  the 
situation  depends  on  the  means  of  communication,  the 
richness  of  the  soil  is  renewed  by  science,  and  fertility  is  in- 
creased by  labor.  The  owner's  labor  in  such  a  case  may 
have  lost  its  individuality  and  been  incorporated  in  the 
soil.  Rent,  not  entirely  an  effect  of  the  forces  of  nature 
or  conditions  dependent  upon  the  action  of  man,  repre- 
sents a  handicap  but  is  very  analogous  to  that  which 
the  basic  nature  of  man  carries  from  birth  and  receives 
from  education.  He  who  will  not  consider  the  natural 
differences  between  man  and  man,  and  is  biased  by  their 
identity,  will  find  the  phenomenon  of  rent  unjust.  Pasini, 
cited  by  Lampertico,  says  that  there  is  always  one  man 
who  has  the  greater  capital  or  a  better  site,  with  the 
capacity  of  carrying  on  a  work  more  advantageously. 
Under  the  economic  juristic  aspect,  property  in  capital 
and  labor  and  property  in  land  are  the  same.  The 


HENRY  GEORGE'S  THEORY      443 

cultivator  who  carries  out  a  more  limited  plan  and  has 
a  more  limited  capital  and  therefore  obtains  less  results 
cannot  say  that  the  cultivator,  furnished  with  capital  for 
more  advantageous  exploitation,  should  be  debited  with 
the  difference.  Rent  is  not  unjust  on  another  score; 
it  is  a  surcharge  which  is  reduced  to  a  compensation 
through  past  and  future  changes  of  the  productive  fund. 
It  is  a  kind  of  insurance;  not  reciprocal,  not  that  of  the 
State,  but  of  the  owner  towards  himself.  Rent  is  re- 
duced with  the  increase  of  production  which,  as  we  have 
already  seen,  is  effected  by  the  system  of  private  property. 
Private  ownership  is  not  the  cause  of  rent,  which 
varies  with  the  cost  of  production,  but  accompanies  it 
and  makes  it  an  attribute  of  the  owner  alone ;  and  so,  if 
there  were  no  private  property,  rent  would  not  be  lack- 
ing to  satisfy  the  needs  of  the  population  which  would 
require  an  equally  expensive  cultivation. 

§  270.  Henry  George's  Theory.  In  order  to  study 
the  theme  of  private  property  in  land  under  the  eco- 
nomic aspect,  let  us  for  a  moment  study  two  recent  and 
important  theories,  the  theory  of  Henry  George  and  that 
of  Loria.  The  concrete  and  real  character  of  social  acts 
should  not  be  disregarded  by  the  philosophy  of  law, 
—  facts  whose  economic  structure  is  a  natural  presup- 
position of  the  juristic  relations  and  civil  institutions. 
Henry  George,  the  representative  of  scientific  American 
socialism,  confuses  the  control  of  private  property, 
which  preserves  it  intact,  with  its  absorption,  in  his  book 
"Progress  and  Poverty."  He  asks  why  poverty  is 
greatest  where  the  progress  is  greatest?  Why,  with  the 
increase  of  productive  ability,  wages  tend  to  minimum? 
Modern  political  economy,  as  he  calls  the  classic  doc- 
trine, answers  that  wages,  being  determined  by  the 
number  of  laborers  and  the  proportion  of  capital  to  pay 
that  labor,  decreases  because  the  number  of  laborers 


444       PREDIAL  PROPERTY  IN  THE  SOIL 

increases  in  greater  proportion  than  the  augmentation  of 
capital.  Such  a  solution,  says  Henry  George,  depends 
upon  two  erroneous  theories,  —  on  the  theory  of  wages 
and  that  of  Malthus.  It  is  not  true  that  wages  are  paid 
by  capital,  but  they  grow  out  of  productive  labor.  It 
is  not  the  employer  who  precedes  the  labor,  but  the 
labor  that  precedes  the  employer.  If  every  laborer 
makes  the  fund  from  which  he  receives  his  wage,  wages 
could  not  diminish  with  the  number  of  laborers,  provided 
that  the  efficiency  increases  with  the  number  of  laborers. 
The  more  laborers  there  are,  the  higher  should  be  the 
wages,  all  things  being  equal.  Statistics  prove  that  the 
higher  nations  are  not  those  in  which  nature  is  more 
prodigal,  but  the  nations  which  are  marked  by  a  more 
productive  labor,  and  that  with  the  increase  of  popu- 
lation there  is  a  corresponding  increase  in  the  medial 
production  of  wealth.  The  cause  of  the  decrease  of 
wages  and  the  increase  in  poverty,  according  to  the 
more  progressive  philosophers,  is  not  to  be  found  in 
the  law  of  production  but  in  that  of  distribution.  Rent 
does  not  represent  in  any  way  an  aid  given  to  pro- 
duction, but  merely  the  power  of  assuring  to  the  owner 
a  part  of  the  results  of  production.  The  law  of  the 
phenomenon  of  rent  is  found  in  the  theory  of  Ricardo, 
which  Henry  George  formulates  in  a  broader  manner. 
Property  (he  says)  in  a  natural  agent  of  production  will 
give  the  power  of  appropriation  of  so  much  of  the  wealth 
produced  by  the  labor  and  capital  thereto  applied  as 
exceeds  the  return  from  the  same  amount  of  labor  and 
capital  expended,  less  productive  in  occupations,  to 
which  it  could  be  freely  applied.  Thus  the  interest 
of  the  manufacturer  and  the  wages  of  the  laborers  are 
determined  by  the  limits  of  cultivation.  Rent  increases 
as  the  limit  of  cultivation  is  approached,  and  decreases 
as  the  limit  is  increased.  Interest  and  wages  are  lowered 


CRITICISM  OF  GEORGE'S  DOCTRINE     445 

when  the  limit  of  cultivation  is  approached,  and  increase 
as  it  goes  up.  The  movement  of  rent  is  progressive  while 
that  of  wages  and  interest  which  vanish  is  not.  Rent 
sometimes  is  increased  through  the  increase  of  popula- 
tion, through  the  progress  of  art  and  commerce,  and 
through  speculation.  Rent  takes,  therefore,  what  wages 
and  interest  lose;  both  depend  not  on  the  product  of 
labor  and  capital,  but  on  what  remains  above  the  rent. 
In  other  words,  wages  and  interest  depend  on  what  pro- 
duction there  could  be  without  the  payment  of  rent, 
that  is,  of  the  poorest  of  cultivated  lands.  Whatever, 
therefore,  be  the  increase  in  productive  power,  if  the 
rent  increases  pari  passu,  wages  and  interest  cannot 
increase,  and  the  owners  grow  rich  and  all  the  others 
grow  poor.  The  only  remedy  for  the  evil  is  the  confis- 
cation of  rent  through  a  single  tax  which  would  absorb 
it  all.  The  confiscation  of  rent  is  a  remedy  instrumental 
to  clearing  the  way  for  the  final  remedy  of  the  nation- 
alization of  the  soil  and  the  recognition  of  the  equal 
right  of  all  to  the  collective  possession  of  land.  This,  in 
a  few  words,  is  the  doctrine  of  Henry  George. 

§  271.  Criticism  of  Henry  George's  Doctrine.  This 
doctrine  is  founded  in  a  great  part  on  facts  which 
do  not  exist.  It  has  no  base  in  reality.  It  is  not  in 
the  least  true  (as  has  been  observed  by  Rae  in  his  book, 
"Contemporary  Socialism")  that  with  progress  the 
poor  become  poorer  and  increase  in  number.  Wher- 
ever there  is  civilization  and  progress,  there  the  number 
of  poor  decreases  and  charity  is  largely  developed,  the 
means  of  tenure  of  life  increase  and  also  the  duration 
of  human  existence.  If  in  the  great  cities  the  poorer 
class  seems  numerous,  the  same  is  also  true  throughout 
the  country  districts;  it  is  natural  that  in  those  places 
where  immense  wealth  and  luxury  exist  the  poor  should 
appear  poorer  than  they  really  are.  The  true  sign  of 


446        PREDIAL  PROPERTY  IN  THE  SOIL 

increasing  poverty  is  shown  by  restriction  of  the  num- 
ber of  things  necessary  to  life  and  increased  difficulty 
in  obtaining  them.  Experience  shows  that  in  times 
of  economic  progress  the  number  of  needs  which  we  can- 
not renounce  grows,  and  that  there  is  a  facility  for 
obtaining  them  even  when  there  are  not  exceptional 
conditions.  The  laborer  of  to-day  is  accustomed  to  have 
many  things  that  a  hundred  years  ago  it  was  madness 
for  him  to  hope  for.  This  changed  tenure  of  life  through 
the  effects  of  civilization  is  taken  into  consideration  in 
his  wages;  for  it  is  not  true  that  wages  have  decreased ;  in 
fact,  they  have  been  increased  as  a  result  of  increased  de- 
mands in  all  branches.  If  we  make  a  comparison  with 
fifty  years  ago  we  will  see  the  actual  increase  in  wages, 
even  though  we  remember  the  changed  value  of  mer- 
chandise and  money.  If  there  is  not  a  general  decrease 
in  wages,  the  persistent  poverty  alleged  by  Henry 
George  is  lacking.  He  should,  too,  consider  all  the 
other  causes  of  poverty,  —  lack  of  foresight,  alcoholism, 
consumption,  accidents,  sickness,  and  death.  It  is  not 
true  that  the  decrease  in  wages  is  produced  by  the  con- 
stant increase  in  rent  which  absorbs  automatically  the 
greater  part  of  the  social  income,  because  we  cannot  say 
that  the  agrarian  wages  are  increased  wherever  there  has 
been  an  increase  in  rent.  Statistics  show  that  rent  bears 
no  greater  proportion  to-day  to  national  wealth  and 
agricultural  production  than  formerly,  and  wages  are 
not  in  a  less  proportion.  The  theory  which  Henry 
George  champions  in  place  of  the  already  abandoned 
theory  of  the  origin  of  wages  is  erroneous,  since  it 
is  not  true  that  wages  are  always  drawn  from  the 
production  itself  and  that  the  laborer  precedes  the  em- 
ployer. In  fact,  it  happens  in  the  majority  of  cases 
that  the  value  given  by  the  worker  in  exchange  for  the 
wages  is  not  a  true  exchange  for  the  commercial  em- 


LAND  NOT  A  GIFT  OF  GOD  447 

ployer,  until  after  the  product  is  sold.  Sometimes 
years  pass  in  which  the  employer  receives  nothing 
from  the  product  over  which  he  has  expended  much 
for  raw  material  and  wages.  The  other  theory  of 
Henry  George  about  population  is  equally  false  because 
founded  on  the  untrue  hypothesis  of  the  unlimited  pro- 
ductive capacity  of  the  earth.  There  is  no  relation  of 
cause  and  effect  between  the  increase  of  rent  and  the 
decrease  of  wages.  Rent  and  wages  ordinarily  have 
the  same  favorable  and  unfavorable  conditions.  We  can 
even  say  that  with  the  increase  of  rent  the  profits  and 
wages  increase,  and  with  its  decrease  they  fall  away. 
This  absorption  of  an  always  increasing  quota  of  the 
social  income  by  rent  is  imaginary,  for  rent  has  a 
tendency  to  increase  with  the  increase  of  population  that 
urges  men  to  cultivate  the  less  fertile  land,  cannot  be 
a  truly  absorbent  power  because  of  the  great  technical 
advance  of  agriculture  which  increases  the  fertility  and 
natural  forces  of  the  soil.  Furthermore,  the  greater  part 
of  modern  wealth  is  not  in  the  hands  of  the  landowners, 
neither  is  it  increased  exclusively  by  the  existence  of 
rent.  Industry  and  commerce  are  without  doubt  potent 
causes  in  its  extraordinary  actual  development. 

§272.  Agricultural  Land  is  not  a  Gift  of  God.  Henry 
George  cannot  consider  that  class  which  to-day  holds 
the  greatest  part  of  social  wealth  an  influential  factor, 
that  is,  the  capitalists  and  contractors  to  whom  the  in- 
terest and  profits  belong.  He  calls  wages  profits  and  tries 
to  place  the  latter  under  the  laws  of  wages  while  they  are 
really  regulated  by  different  laws,  often  opposed  thereto. 
Who  can  fail  to  see  the  difference  between  them?  Accord- 
ing to  Ricardo,  first  wages  and  interest  are  paid  and  then 
one  takes  out  the  rent,  which  is  the  over-profit,  and  repre- 
sents what  remains  by  the  above  process.  Henry  George, 
on  the  other  hand,  says  that  wages  and  profits  are  deter- 


448       PREDIAL  PROPERTY  IN  THE  SOIL 

mined  by  the  rent  while  that  presupposes  the  prevalence 
of  labor  or  capital.  According  to  Ricardo,  notes  Rae, 
rent  in  no  wise  affects  the  price  of  bread;  its  increase 
is  not  a  cause  of  high  prices  but  rather  it  is  the  high 
price  of  bread  which  increases  rent.  The  price  of  bread 
does  not  depend  upon  the  will  of  the  owner  of  the 
land,  but  is  derived  from  the  increase  of  population 
and  the  decrease  of  the  harvests.  Henry  George 
is  governed  by  absurd  ideas,  since  he  believes  that 
the  increase  of  population  results  in  an  increased  offer 
of  food  stuffs  for  sale,  and  that  there  cannot  be  a  constant 
decrease  in  the  harvest  because  the  material  is  unlimited. 
This  would  be  contrary  to  the  laws  of  limitation  of  pro- 
duction, and  shows  a  confusion  of  the  eternity  of  material 
with  the  unlimited  productive  capacity  of  the  earth. 
Material  is  eternal,  but  its  capacity  is  limited.  The 
two  conceptions  logically  are  not  exclusive.  Henry 
George  thinks  that  where  there  exists  an  abundance  of 
unappropriated  land,  there  rent  will  be  low  and  wages 
high,  because  none  will  wish  to  work  over  anything  to 
obtain  less  than  he  can  get  from  land  which  he  can  him- 
self purchase  for  a  trifle.  But  admitting  that  such  a  fac- 
ulty of  choice  can  exist  and  influence  the  wages  paid  by 
employers  to  their  workmen,  there  is  no  doubt  that  wages 
would  increase  to  the  detriment  of  property.  In  such 
an  hypothesis,  it  is  not  possible  to  think  that  the 
profits  would  increase,  because  the  contradiction  would 
not  permit  it.  We  know,  according  to  Henry  George, 
where  there  is  an  abundance  of  free  land,  rent  is  low, 
and  wages  and  interest  considered  by  him  as  a  natural 
and  legitimate  increment  of  capital  are  high,  but  we  must 
not  forget  that  he  tries  always  to  place  these  diverse 
terms  under  the  same  law  in  order  to  oppose  them  to 
rent.  The  proposed  remedy  by  the  confiscation  of  rent 
through  a  single  tax  is  not  practical,  because  it  is  given 


LAND  NOT  A  GIFT  OF  GOD  449 

to  no  one  to  separate  in  the  productive  farm  the  elements 
of  rent  from  those  of  labor  and  capital.  The  nationaliza- 
tion of  the  soil  cannot  render  land  more  productive,  to 
argue  from  the  economic  conditions  of  those  American 
States  which  own  a  large  part  of  their  cultivated 
soil,  in  relation  to  the  system  of  private  property 
in  the  other  States.  There  is,  perhaps,  not  as  much 
or  as  widely  extended  poverty  in  those  States  which 
have  still  vast  territories  at  their  disposition.  Henry 
George  does  not  deny  this  fact,  but  tries  to  explain 
it.  The  mistake  in  which  he  falls  with  many  other 
writers  consists  in  regarding  agricultural  land  as  a 
gift  of  God,  forgetting  that  land  only  attains  its  value 
when  man  applies  his  own  activity  thereto  in  ploughing, 
fertilizing,  cultivating,  and  making  it  a  productive  agent. 
Cultivated  land  is  as  much  the  true  production  of  man 
as  anything  else  in  which  the  action  of  the  individual 
can  be  seen.  It  is  strange  that  Henry  George  recognizes 
private  property  in  everything  else,  even  in  factories 
which  in  the  great  centres  give  a  greater  return  than  the 
farms,  but  denies  private  property  in  land  which  is  not 
a  gift  of  God,  except  in  the  sense  that  an  artificial 
product  is  so  given.  He  proposes  control  of  property 
in  land  equivalent  to  absorbing  it,  because  he  wishes 
to  confiscate  rent.  This  confiscation  of  rent  is  in- 
tended to  pave  the  way  for  the  nationalization  of  the 
soil,  a  confiscation  of  private  property.  Land  can  become 
an  object  of  property  as  anything  else,  and  can  take  its 
part  as  an  organ,  projection,  or  investiture  of  the  person. 
It  differs  from  other  things  because  it  is  more  subject  to 
the  laws  of  natural  limitation  and  does  not  enter  into 
the  category  of  goods  which  can  be  indefinitely  increased. 
Its  greatest  productive  capacity  presupposes  as  a  neces- 
sary condition  the  system  of  private  property.  At  this 
point  social  economy  joins  forces  with  law,  which  should 


450        PREDIAL  PROPERTY  IN  THE  SOIL 

control  private  property  in  land  in  such  a  manner  as  to 
obtain  from  it  the  greatest  good  for  the  individual  and 
society. 

§  273.  Loria's  Theory.  Loria,  in  his  book  "La  Terra 
ed  il  Sistema  Sociale,"  gathers  together  all  the  theories 
of  the  economic  system  into  three  principal  groups; 
for  some  of  them  base  economic  phenomena  on 
man,  others  deduce  them  from  a  technical  system, 
and  still  others  from  the  conditions  of  external 
nature  or  more  generally  from  land.  The  theory 
which  connects  the  economic  phenomena  with  man  is 
the  dogma  of  orthodox  science.  It  affirms  that  the  rule 
of  such  phenomena  is  the  necessary  and  immutable 
product  of  the  very  nature  of  man,  and  the  personal 
interest  which  never  far  departs  therefrom.  Now  this 
doctrine  cannot  explain  the  diversity  of  historical  rela- 
tions in  the  different  ages  and  the  marvelous  evolution 
of  social  forms,  because  the  personal  interest  is  immu- 
table throughout  all  times  and  is  unaffected  by  the 
modifying  action  of  history.  The  theories  of  the  second 
group  consider  social  relations  as  a  product  of  the  domi- 
nant technical  system,  and  are  divided  into  socialistic 
and  commercial  theories.  The  first  make  the  system 
of  production  and  the  series  of  special  economic  rela- 
tions which  govern  all  the  acts  of  life  and  society  corre- 
spond to  a  given  state  of  productive  instrumentality. 
But  the  evolution  of  productive  methods  makes  a 
radical  change  in  the  technical  instrumentality,  and 
renders  the  antecedent  system  of  production  and 
economics  impossible.  Then  the  antiquated  economic 
form  is  destroyed  by  a  social  revolution  and  sup- 
planted by  one  more  suited  to  the  new  phase  of 
productive  instrumentality.  This  has  occurred  four 
times,  to  which  as  many  forms  of  economic  relations 
correspond, —  Asiatic,  ancient,  feudal,  and  the  middle 


CONCLUSIONS  OF  LORIA  451 

class  economics.  The  constant  progress  of  productive 
instrumentality  will  soon  render  this  economic  form 
impossible  and  will  substitute  a  more  perfect  one, 
consisting  in  the  collective  property  of  land  and  means 
of  production.  The  second  theory  of  this  group  connects 
the  economic  relations  with  conditions  of  exchange  and 
the  commercial  constitution.  There  is  no  choice  between 
these  two  doctrines  of  the  second  group  because  the 
socialist  does  not  see  that  technical  instrumentality 
itself  must  have  a  cause  and  must  depend  on  some  pre- 
cedent element  and  that  this,  also  imperfect,  must  be 
connected  with  the  new  superior  economic  form.  The 
socialistic  theory  does  not  show  the  reason  why,  in  the 
period  of  undeveloped  instrumentality,  there  should  be 
slavery,  and  in  the  period  of  machinery,  wages  instead  of 
collective  property.  The  commercial  theory  does  not 
consider  that  the  conditions  of  exchange  are  derivative 
facts, —  the  consequences  of  the  economic  system  and 
not  true  causes. 

§  274.  The  Conclusions  of  Loria.  The  primary 
element  and  first  cause  of  social  relations  is  land, 
according  to  Loria.  Land  as  the  productive  element 
is  the  first  cause  of  economic  facts,  distinguished  from 
the  technical  instrumentality  which  is  a  derivative  phe- 
nomenon, and  is  the  moving  cause  distinguished  from 
the  personal  interest  which  is  immutable  in  its  structure 
and  intensity.  Land  is  the  basis  of  the  economic  system. 
It  is  the  supreme  principle  of  political  economy,  which  is 
a  mere  natural  deduction  from  the  analysis  of  land  and 
property.  The  theory  of  land  comprehends  the  law  of 
laws  because  it  considers  the  social  organisms  substan- 
tially diverse,  which  succeed  one  another  in  history,  and 
shows  the  first  reason  for  the  various  historical  laws 
which  have  ruled  those  organisms.  This  supreme  law 
is  the  law  of  motion  with  the  continually  changing  con- 


452       PREDIAL  PROPERTY  IN  THE  SOIL 

ditions  of  occupancy  and  productivity  for  its  object,  and 
not  man,  crystalized  in  the  immutability  of  his  character 
and  tendencies.  The  analysis  of  property  in  land  can 
be  stated  in  its  general  results  in  the  very  words  of  Loria: 
When  land  is  free  and  when  every  man  can  and  hardly 
wants  to  occupy  a  portion  of  it  and  to  expend  labor  and 
capital  on  his  own  account,  property  will  be  impossible, 
because  there  will  be  no  worker  disposed  to  expend  his 
efforts  for  the  benefit  of  a  capitalist.  If  the  productivity 
of  the  land  is  increased,  the  producers  will  have  no  need 
of  associating  and  limiting  their  own  independence,  so 
that  the  economic  form  necessary  will  be  the  isolation 
of  independent  producers;  if,  however,  the  productivity 
of  the  land  is  decreased,  the  producers  are  disposed  to 
associate  to  increase  the  productivity  of  their  labor  and 
under  such  conditions,  therefore,  the  economic  form  nec- 
essary is  either  the  close  association  of  producers,  who 
work  together  dividing  the  property  into  equal  parts,  or 
the  associations  of  producers  and  simple  workers  with 
the  division  of  products  into  equal  parts.  In  any  case  the 
division  of  society  into  a  class  of  capitalists  who  are 
not  laborers,  and  of  laborers  who  are  not  capitalists,  is 
not  possible  if  the  land  is  free,  because  it  is  impossible 
to  gain  profit  for  a  capitalist  who  does  not  work.  The 
formation  of  this  kind  of  profit  is  only  obtained  by  the 
violent  suppression  of  free  land,  where  the  population  is 
scarce  and  cannot  occupy  all  the  land.  But  with  the 
constant  increase  of  population,  and  with  all  the  land 
cultivated,  the  workman  loses  at  once  that  option 
which  is  his  greatest  protection  against  the  usurpation 
of  capital  and  is  obliged  to  abandon  to  the  capitalist 
the  greatest  part  of  the  produce.  At  this  point  comes 
the  profit  not  less  violent,  but  automatic,  due  to 
the  appropriation  of  land  which  takes  the  option 
from  the  proletariat.  The  basis  of  capitalistic  property 


CRITICISM  OF  LORIA'S  THEORY  453 

is  always  the  suppression  of  the  free  land,  and  the 
exclusion  of  the  workman  from  the  land.  Free  land, 
on  the  other  hand,  is  the  destruction  of  capitalistic 
property.  By  the  increasing  demand  of  a  progressive 
population  economic  bonds,  founded  on  predial  property, 
become  intolerable,  and  therefore  free  land  must  be 
reestablished ,  or  rather  the  free  property  of  the  farm  must 
be  established,  recognizing  in  every  man  the  right  to 
occupy  as  much  of  the  earth's  surface  as  he  can  cultivate 
with  his  labor.  On  the  basis  of  free  property  in  land  the 
association  of  capitalists  and  workers  will  be  made  and 
the  social  equilibrium  will  result. 

§  275.  The  Criticism  of  Loria's  Theory.  The  criticism 
which  Loria  makes  of  the  different  theories  is  not 
accurate,  neither  does  his  doctrine  appear  to  us  true. 
How  can  he  combat  the  theory  which  places  human 
nature  at  the  base  of  social  and  economic  relations,  if 
society  be  man  in  the  abstract  and  if  wealth,  the  object 
of  political  economy,  is  due  to  the  work  of  man  and  pre- 
supposes his  needs,  ends,  and  activities  brought  to  bear 
upon  the  production  of  the  means  of  satisfaction?  The 
conception  of  wealth  is  absolutely  inseparable  from  that 
of  individual  and  social  man.  The  conception  of  man 
comprehends  human  essence,  not  as  a  quiescent  prin- 
ciple, but  as  urged  on  by  an  internal  motion  always  con- 
tinuous and  progressive,  by  which  human  nature  by 
degrees  reaches  its  ideal.  This  motion,  which  is  one  with 
the  action  of  external  facts,  constitutes  history;  human 
nature  cannot  be  understood  without  the  history  in 
which  it  develops,  not  ever  losing  its  fundamental  char- 
acteristics, which  contradistinguish  it  specifically.  In 
spite  of  the  diversity  of  the  historical  relations  of  dif- 
ferent ages  and  the  marvelous  evolution  in  social  forms, 
man  will  always  be  man,  and  have  tendencies  more  or  less 
individualistic  and  impulses,  now  weak  and  now  strong, 


454       PREDIAL  PROPERTY  IN  THE  SOIL 

towards  sympathy  for  his  fellows.  The  sense  of  self  and 
of  society  are  essential  forms  of  human  nature  which 
will  never  disappear,  although  they  are  shown  in  various 
guises  and  new  forms  in  different  periods,  and  combine 
in  constantly  different  ways.  The  history  of  man  is  the 
history  of  these  changes ;  human  evolution  is  their  devel- 
opment. It  is  not  accurate  to  say  that  the  personal  inter- 
est is  immutable  and  unaffected  by  the  modifying  action 
of  history,  for  it  follows  the  vicissitudes  of  feeling  and  the 
development  of  tendencies  which,  from  a  blind  and  prim- 
itive egoism,  develop  into  one  that  is  altruistic,  as  Spen- 
cer says.  Individuality  is  not  destroyed  but  modified, 
and  therefore  it  is  not  absurd  to  admit  the  persistence 
of  some  elements  which  express  immediately  its  charac- 
teristics. Political  economy  and  law,  growing  out  of 
human  nature,  must  consider  personal  interest  power. 
Political  economy  should  be  founded  principally  upon 
the  personal  interest  without  forgetting  other  individual 
tendencies  and  the  social  tendencies  which  exert  an 
influence  upon  wealth,  as  we  have  before  said.1  Private 
law  should  be  founded  essentially  upon  the  idea  of 
individual  personality  recognizing,  however,  the  natural 
bonds  which  it  has  with  society.  But  it  cannot  be  alto- 
gether controlled  by  the  social  idea,  for  in  that  case 
it  would  cease  to  be  private.  Socialism  alone  would  sup- 
press individuality  in  economics  and  law,  losing  sight 
of  human  nature.  It  is  not  logical  to  look  upon  the  tend- 
encies to  personal  interest  as  immutable,  for  the  collective 
interest  can  be  conceived  of  as  having  the  same  character. 
Admitted  that  immutability  means  the  permanence  of 
necessary  marks  by  which  one  thing  is  distinguished  from 
another,  we  must  conclude  that  social  interest  is  likewise 
immutable,  preserving  always,  as  it  does,  its  own  nature 
and  having  at  all  times  the  general  good  as  its  object. 

1Cf.  §§  140,  141,  ante. 


ECONOMIC  RELATIONS  455 

As  to  the  criticism  which  Loria  makes  of  the  two  theories 
of  the  second  group,  and  especially  of  socialism,  we  should 
observe  that  the  first  principle  of  this  system  is  not  really 
placed  in  the  technical  instrumentality.  Socialism  has 
revealed  and  even  exaggerated  the  connection  between 
technical  instrumentality  and  the  form  of  economic 
relations.  It  will  not  see  that  an  imperfect  technical 
instrumentality  can  be  associated  with  a  superior  eco- 
nomic form,  and  it  will  not  closely  examine  the  reason 
why,  in  the  period  of  undeveloped  instrumentalities, 
there  should  have  existed  slavery,  and  wages;  but  it 
is  not  right  to  deny  that  socialism  is  based  on  the 
idea  of  a  technical  system  and  that  it  sought  its  base 
in  human  nature.  Socialism  in  all  its  phases  has  pro- 
ceeded from  the  conception  of  man  in  the  abstract  and  has 
always  been  hostile  to  individual  liberty.  It  has  con- 
sidered human  nature  abstractly,  that  is,  from  the  side 
of  original  capacities  which  are  equal  in  all  men,  and  from 
its  theoretical  and  final  powers  (so  called  by  Romagnosi) , 
and  has  not  understood  fully  enough  the  value  of  the 
acquired  faculties  and  practical  powers  derived  from 
different  characters  of  individuals  or  from  diverse  activi- 
ties. These  practical  powers  become  by  action  the 
final  powers  and  represent  a  full  process  of  individual- 
ization  in  which  all  the  native  and  artificial  modality  of 
the  individual  arise  as  well  as  the  differences  growing  out 
of  objective  diversity.  Socialism  considers  merely  the 
equal  capacities  of  man  and  the  common  agents  of  a 
sensible  world,  forgetting  entirely  the  medial  term  of 
practical  powers,  and  therefore  would  substitute  the 
collective  possession  of  the  means  of  production  in  place 
of  private  property. 

§  276.  Man  is  the  Origin  of  Economic  Relations. 
Land  cannot  be  the  real  beginning  of  economic  rela- 
tions, as  Loria  thinks,  without  inverting  the  factors  of 


456       PREDIAL  PROPERTY  IN  THE  SOIL 

production  and  the  premises  of  the  science  of  wealth. 
Capital  and  natural  forces  are  instrumentalities  of  pro- 
duction, the  one  derivative,  the  other  original;  but  both 
presuppose  man.  Without  man  there  would  be  no 
capital  and  no  land  as  a  productive  element.  It  would 
have  a  physical  existence  merely  and  not  economic. 
Man  is  not  a  mere  coefficient  of  production,  but  its  sub- 
ject, its  first  cause  and  limitation.  Land  cannot  become 
the  moving  cause  save  to  the  extent  that  man  works 
upon  it  and  gives  it  value.  Its  evolution  is  not  physical, 
but  economic;  it  moves  as  work  modifies  it  and  renders 
it  always  more  powerful  for  the  satisfaction  of  human 
needs.  It  is  not  true  that  of  the  three  premises  of 
classical  economy, — the  personal  interest,  the  instinct  of 
procreation,  and  the  limitation  of  the  extent  and  pro- 
ductivity of  the  earth, — the  first  two  are  constant  and 
land  alone  variable,  developing  in  a  series  of  the  digres- 
sive steps.  But  personal  interest  changes  according  to  its 
various  combinations  with  altruistic  sentiment  and  gen- 
eral interest.  The  instinct  of  procreation  is  more  or  less 
modified  by  foreign  obstacles  and  by  the  development  of 
intellectual  faculties.  If  the  constancy  of  personal 
interest  and  of  the  instinct  of  procreation  means  that 
man  always  desires  his  own  good  and  tends  to  multiply, 
there  is  reason  also  to  retain  the  constancy  of  the  third 
premise  because  the  limitation  of  the  extent  and  pro- 
ductivity of  the  earth  will  never  fail.  Natural  law 
forbids  it.1  The  mutual  conditions  of  the  occupancy 
and  fecundity  of  the  earth  depend  on  man  and  do  not 
constitute  a  supreme  principle.  The  same  conception 
of  the  freedom  of  land,  on  which  Loria  is  so  insistent, 
includes  essentially  the  relation  of  man  as  an  individual 
and  in  society.  Land  is  free;  but  in  respect  to  whom? 
Demonstrated  that  the  theory  of  the  earth  as  the  first 

1  Cf.  §  144  ante. 


CONTRADICTION  IN  LORIA'S  THEORY    457 

cause  of  economic  relations  is  false,  it  follows  that  it 
cannot  be  the  origin  of  the  more  complex  social  facts. 
If  this  theory  is  not  sufficient  to  explain  the  facts  which 
regard  wealth,  how  can  it  explain  social  evolution? 
That  the  economic  factor  in  sociology  is  not  absolutely 
predominant  will  appear  clearly  in  the  discussion  of 
industrial  property.1 

§  277.  A  Contradiction  in  Loria's  Theory.  Loria's 
theory  of  free  land  contains  a  blending  of  two  concep- 
tions, for  it  appears  on  the  one  hand  that  he  denies 
entirely  predial  property,  the  origin  and  basis  of  capital- 
istic and  unproductive  property,  and  on  the  other  hand 
he  accepts  the  right  of  every  man  to  occupy  the  extent 
of  cultivated  ground  which  he  can  cultivate  in  that  free 
property  in  land,  which  the  State  must  protect.  We 
cannot  clearly  see  whether,  after  private  property  in 
land  is  denied  and  ownership  is  attributed  to  the  com- 
munity, the  usufruct  will  be  the  right  of  every  man, 
or  whether  there  will  remain  a  remnant  of  predial 
property,  a  right  to  the  amount  of  land  necessary  for 
each  man  to  obtain  the  means  of  sustenance  by  labor. 
In  both  cases  the  theory  is  not  new  and  is  confused  with 
collectivism,  or  that  form  of  socialism  which  fs  the  con- 
sequence of  the  conception  of  property  in  land  as  the  right 
of  all,  realized  by  work.  It  does  not  disagree  with  either 
doctrine  on  the  question  of  State  intervention,  because 
that  can  be  based  either  on  the  total  appropriation  of 
the  land  or  on  the  limitation  of  its  control  according  to 
the  needs  of  human  beings  and  the  labor  of  each.  So 
in  the  hypothesis  of  free  land  (or  of  free  property  in  the 
land,  as  Loria  says)  there  is  the  phenomenon  of  rent  or 
of  surplus,  because  there  will  always  be  a  difference  in 
the  cost  of  cultivation.  To  whom  will  the  rent  belong? 
Will  the  State  confiscate  it  by  a  tax  which  the  grantee 

lCf.  §  293  et  seq.,  post. 


458       PREDIAL  PROPERTY  IN  THE  SOIL 

must  pay,  or  will  it  go  to  the  benefit  of  the  labor-owner 
or  to  the  association?  We  understand  that  if  the  rent 
goes  to  the  benefit  of  the  possessor  or  the  association  of 
capital  or  of  capital  and  labor,  the  principle,  contrary 
to  that  of  free  land,  of  land  necessary  to  every  man  or 
of  land  as  the  gift  of  God  is  implicitly  admitted.  This 
contrary  principle  is  the  exclusive  appropriation  of  the 
common  natural  forces  not  derived  from  labor  or  capital. 
If  land  is  every  man's,  if  it  is  not  a  creation  of  man,  if 
it  should  be  free,  how  then  can  an  individual  or  an 
association  take  a  surplus  from  that  which  is  the  gift  of 
God?  How  can  the  appropriation  of  the  rent  be  justi- 
fied, if  the  basis  of  free  property  in  cultivated  land  is 
labor  from  which  the  rent  does  not  come?  Loria  says 
that  in  the  system  in  which  everyone  can  and  hardly 
wants  to  occupy  his  piece  of  land  and  expend  his  labor 
and  capital  thereon,  property  is  not  possible  which 
absorbs  a  great  part  of  the  product  to  the  harm  of  the 
workman ;  that  is,  capitalistic  property.  The  workman 
will  have  a  beneficial  power  of  choice  between  the 
possession  of  his  own  land  and  labor  on  that  of  another. 
So  Henry  George  puts  forward  the  hypothesis  of  the 
abundance  of  free  farms  and  speaks  of  this  alternative 
offered  to  the  workmen  believing  that  in  such  circum- 
stances the  rent  will  go  down  and  the  wages  will  go  up. 
But  despite  Henry  George,  we  can  say  that  the  alter- 
native is  not  one  of  the  best  for  the  workmen  because 
capital  is  necessary  to  give  value  to  land  and  it  takes 
time  to  reap  its  fruits.  The  observation  can  likewise 
be  applied  to  the  theory  of  Loria  which  on  this  point 
is  not  essentially  different  from  that  of  Henry  George. 
It  is  manifest  that  capitalistic  property  by  Loria  means 
the  same  as  by  Karl  Marx ;  that  it  is  not  the  fruit  of 
work.  According  to  Marx,  property  in  land  and  in 
all  instrumentalities  of  production  generates  capitalistic 


CONTRADICTION  IN  LORIA'S  THEORY    459 

property,  and  therefore  in  his  mind  the  suppression 
of  this  kind  of  property  includes  not  only  land  but  the 
means  of  production,  as  we  will  see  in  a  following 
chapter. 


460     PROPERTY  IN  FORESTS  AND  MINES 


CHAPTER  VII 
PROPERTY  IN  FORESTS  AND  MINES 

THE  FUNCTIONS  OF  THE  FORESTS.  —  RIGHT  OF  DEFORESTA- 
TION.—ITS  RESTRAINT  AND  THE  REASONS  THEREFOR.  — MINING 
PROPERTY  AND  THE  PHASES  OF  THE  INDUSTRY. —  CRITICISMS 
OF  ARGUMENTS  IN  FAVOR  OF  THE  OWNER  OF  THE  SOIL.— THE 
DOCTRINE  THAT  ATTRIBUTES  THE  ORE  TO  THE  DISCOVERER. 

§  278.  Forests  and  Mines  are  not  Land.  Law  is 
not  an  abstract  formula  but  a  concrete  principle. 
It  is  constituted  and  developed  in  life,  assuming 
various  and  diverse  attitudes  according  to  the  nature 
of  the  object  to  which  it  refers.  If  land  should  not  be 
confused  with  minerals  and  forests,  it  is  evident  that 
the  law  applicable  to  property  in  land  should  not  be 
applied  to  the  latter. 

§  279.  The  Advantages  of  Forests.  With  this 
premise,  let  us  briefly  state  the  particular  functions 
of  a  forest,  which  are  four  in  number.  In  the  first 
place,  a  forest  furnishes  wood  for  civil  and  military 
constructions  and  for  the  daily  uses  of  the  arts.  It 
prevents  landslides,  avalanches,  snowslides,  and  the 
washing  away  of  the  vegetable  earth,  and  avoids  the 
evaporation  of  the  rain  water.  It  protects  the  soil 
from  the  rays  of  the  sun  and  keeps  ample  deposits  of 
water,  moderates  the  wind,  and  keeps  the  air  more 
pure.  Besides,  we  must  consider  that  in  the  lumber 
industry,  labor  and  capital  play  a  small  part  in  com- 
parison to  the  amount  invested  in  agriculture.  A 
forest  is  fertilized  by  fallen  leaves  and  it  is  perennial. 


PUBLIC  CONTROL  OF  FORESTS          461 

It  seems  as  if  nature  wished  to  protect  herself  against 
the  arbitrary  disposition  of  man. 

§  280.  Should  There  be  Public  Control  of  Forests  ? 
Now  the  special  character  and  functions  of  forests 
are  more  or  less  admitted  by  the  representatives  of  all 
the  possible  systems  of  forestry  regulation,  that  is,  by 
those  who  are  in  favor  of  absolute  freedom  and  by  those 
who  are  champions  of  control,  general  and  constant  or 
partial  and  changeable  in  certain  cases.  The  former 
are  firmly  persuaded  that  the  harmony  of  the  social 
interests  and  the  interests  of  the  owners  of  the  forest 
will  be  the  natural  effect  of  the  free  development  of 
the  activity  which  is  aimed  at  the  production  of  a  valu- 
able asset,  and  that  therefore  the  State  should  not 
interfere.  There  does  not  seem  to  be  any  doubt  that 
these  are  actuated  by  the  general  presupposition  that 
economic  order  is  reducible  to  a  spontaneous  uncon- 
scious and  instinctive  coincidence  of  private  inter- 
ests for  the  good  of  all.  But  such  a  presupposition  is 
erroneous,  as  we  have  shown  above.1  Human  interests 
are  not  blind,  natural  forces,  subject  to  shocks,  pertur- 
bations, and  changes,  but  are  ethical  forces  little  depend- 
ent upon  freedom,  the  effective  principle  of  history. 
This  implies  the  influence  of  nature  on  mind,  but  still 
consists  properly  in  a  progressive  series  of  victories  al- 
ways more  important  and  decisive  of  mind  over  nature. 
In  such  a  process  of  emancipation,  freedom  shows, 
to  adopt  the  phrase  of  Vico,  its  divine  essence  or  birth. 

§  281.  Restraint  is  Necessary  in  the  Present  State 
of  Development.  In  the  argument  of  which  we  are 
speaking,  the  profit  of  the  owner  is  evidently  opposed 
to  common  interest.  Let  us  take  a  society  which  has 
need  of  the  permanence  of  its  woodland  because  of 
the  physical  conditions  of  the  country.  The  owner 

lCf.  §  272  ante. 


462     PROPERTY  IN  FORESTS  AND  MINES 

of  this  woodland  in  obedience  to  the  general  need 
should  willingly  restrict  himself  to  cutting  down  a 
few  dead  and  dying  trees  and  to  repairing  the  dam- 
age done  by  wind  and  snow.  And  if  the  wood  is 
capable  of  a  large  lumber  production  he  and  his 
heirs  should  sponte  sua  calmly  await  the  slow 
rebuilding  of  their  capital,  always  insecure,  waiting 
from  sixty  to  a  hundred  and  twenty  years  for  the  de- 
velopment of  a  tree  of  fair  size  when  an  unforeseen 
accident  can  destroy  a  huge  amount  of  lumber.  A 
private  citizen  thus  would  be  constrained  to  renounce 
a  quicker  and  greater  return  from  his  capital  and  in 
place  thereof  undergo  many  burdens  from  which  little 
advantage  comes  to  himself.  Is  it  possible  to  imagine 
all  this?  Are  we  by  any  chance  in  the  happy  times  of 
the  normal  conversion  of  self-interest  into  the  heroics 
or  altruism,  of  which  the  followers  of  Comte  speak? 
Do  we  not  need  more  artificial  chains,  or  if  there  is  a 
reason  for  not  wanting  them,  do  we  not  need  an  economic 
order  founded  on  nature  and,  let  us  add,  on  "natura 
medicatrice"?  Can  we  disregard  so  openly  the  charac- 
ter and  tendencies  of  human  individuality? 

§  282.  Restraint  is  Bad,  but  Often  Necessary.  Bec- 
caria  writes,  in  his  celebrated  lectures  known  under 
the  title  of  "Element!  di  Economia  Publica,"  that 
the  control  of  an  industry  should  be  free  and  the 
divers  interests  left  to  themselves  and  their  natural 
development,  by  which  they  tend  to  reach  a  union 
and  equilibrium;  but  he  adds  that  coercive  and  legis- 
lative discipline  is  necessary  when  we  see  that  a  private 
interest  will  not  or  will  only  too  late  join  with  the  public 
interest,  and  where  the  discovery  of  fraud  is  slow  and 
remote.  Moving  from  this  principle  and  understanding 
the  discord  of  interests  in  the  forest  question,  he  becomes 
the  ardent  champion  of  control,  and  fights  the  danger- 


RESTRAINT  CONSERVATIVE  463 

ous  freedom  of  destruction.  This  liberty  is  also  corn- 
batted  by  Mengotti  and  Romagnosi.  Mengotti  holds 
that  the  law  should  forbid  not  only  criminal  actions 
but  those  which  are  imprudent  and  foolish,  and  by  which 
others  are  harmed  and  ruined.  How  can  it  be  right 
to  set  fire  to  one's  own  house,  if  the  probable  conse- 
quence of  that  act  is  burning  the  next  house  or  the  whole 
city?  And  if  one  cannot  consent  to  leprosy,  plague,  and 
hydrophobia  being  found  in  the  public  street,  or  an 
owner  of  a  property  establishing  a  rope  or  rice  factory 
next  door,  it  is  right  to  forbid  the  owner  of  a  forest 
from  destroying  it  or  unsodding  his  land  on  steep  moun- 
tain sides  to  his  own  advantage.  Romagnosi  also  does 
not  think  that  the  principle  of  non-intervention,  either 
active  or  passive,  should  apply  to  avalanches  and 
snowslides,  thinking  that  private  love  of  gain  should 
be  controlled  for  the  good  of  the  community  through 
the  intervention  of  public  authority.  If  you  make 
rules,  he  says,  for  canals,  which  are  the  property  of 
individuals,  so  that  the  streets  be  not  flooded  and  ruined, 
can  you  not  with  greater  reason  make  rules  against 
landslides  in  mountainous  countries  which  ruin  at  one 
sweep  the  whole  territory  and  subject  it  to  destructive 
floods? 

§  283.  The  Restraint  Should  be  Conservative.  Public 
control  should  not  be  determined  by  hypothetical 
reasons  or  unproven  opinions,  but  should  be  based 
on  facts  fully  demonstrated  as  dangerous  to  society, 
since  it  is  a  question  of  limiting  the  free  owner- 
ship of  an  individual.  Since  the  restraint  depends  upon 
these  facts,  it  is  necessary  that  it  be  established  to 
hinder  the  damage  which  ordinarily  comes  in  the  course 
of  floods  to  agriculture,  husbandry,  geographical  or 
territorial  stability  by  deforestation  or  unsodding. 
That  the  forests  contribute  to  the  permanence  and  regu- 


464     PROPERTY  IN  FORESTS  AND  MINES 

larity  of  the  springs,  so  useful  to  agriculture  and  hus- 
bandry, no  one  sance  mentis  can  deny.  Neither  is  there 
anyone  who  can  doubt  the  influence  of  the  forest  on 
geographical  permanence.  Humboldt  says  that  the  trees 
act  on  the  abundance  of  the  springs,  not,  as  was  believed 
for  a  long  time,  by  a  particular  attraction  for  the  vapors 
in  the  air,  but  because  they  protect  the  soil  from  the 
direct  action  of  the  sun  and  diminish  the  evaporation 
of  rain  water.  One  of  the  results  of  the  destruction  of 
forests  is  that  the  beds  of  rivers  are  dry  during  part 
of  the  year,  and  turn  into  torrents  when  the  great 
seasonal  rains  fall  on  the  heights.  When  the  grass  and 
roots  disappear  on  the  heights  of  the  mountains,  when  the 
moss  is  dried  up,  the  rains,  no  longer  retained  in  their 
courses,  sweep  over  the  drenched  fields  and  cause  sudden 
floods  which  devastate  the  countryside.  The  destruc- 
tion of  the  woods,  the  absence  of  permanent  springs, 
and  the  frequency  of  torrents  are  three  phenomena 
closely  connected.  Marsh  notes,  in  his  book  "Man  and 
Nature,"  that  with  the  disappearance  of  the  forests  the 
precipitation  becomes  irregular,  and  snow  and  spring 
rains,  no  longer  absorbed  by  a  porous,  spongy,  vegetable 
soil,  scour  the  frozen  surface  and  then  pour  through  the 
valleys  towards  the  sea  in  place  of  saturating  a  portion 
of  retentive  earth  and  giving  it  a  supply  of  dampness 
for  the  perennial  springs.  The  earth,  stripped  of  its 
carpet  of  leaves,  is  crumbled  and  powdered  by  the  plough, 
since  it  is  deprived  of  the  small  fibrous  roots  which  hold 
it  together.  It  is  dried  up  and  turned  to  dust  by  the 
sun  and  wind.  The  face  of  the  earth  is  no  longer  a  sponge 
but  dust;  and  the  deluges,  which  the  waters  of  heaven 
pour  on  it,  are  precipitated  along  the  slopes  carrying  in 
suspension  great  quantities  of  earthy  particles  which 
increase  the  mechanical  force  and  erosive  action  of  the 
current.  This  quantity,  reinforced  by  the  sand  and 


CONTROL  OF  FOREST  LANDS  465 

pebbles  of  the  landslides,  fills  the  beds  of  the  streams, 
forcing  them  into  new  channels  and  obstructing  their 
outlets.  The  little  streams,  lacking  their  primary  and 
regular  supply  and  deprived  of  the  protective  shadows 
of  the  woods,  evaporate  during  the  summer  and  change 
into  devastating  torrents  in  the  autumn  and  spring. 
From  such  causes  there  is  a  constant  destruction  of  the 
highlands  and  a  marked  raising  of  the  bottoms  of  the 
rivers  and  lakes.  Reclus,  after  observing  that  a  thick 
wood  is  the  best  protection  against  all  kinds  of  snowslides, 
notices  that  mankind  disappears  where  the  woods  dis- 
appear ;  the  axe  of  the  woodsman  no  less  than  the  sword 
of  the  conqueror  has  destroyed  and  decimated  entire 
peoples. 

§  284.  Italian  Writers  Believe  in  the  Control  of  Forest 
Lands.  The  necessity  of  control  to  preserve  the  springs 
and  territorial  substance  is  fully  shown  by  Italian  writers. 
Mengotti,1  for  example,  says  that  when  nature  is  not 
overcome,  due  to  the  imprudence  of  man,  it  reclothes  itself 
of  its  own  free  will  with  a  covering  of  various  leafy 
plants  on  the  heights,  spurs,  and  flanks  of  the  moun- 
tains. This  is  surely  the  most  efficacious  means  which 
it  can  adopt  for  retarding  and  arresting  rain  and  snow, 
so  that  they  cannot  be  precipitated  all  at  once  into  the 
valleys,  producing  instantaneous  and  headlong  rivers. 
A  great  forest  holds  an  immense  quantity  of  water  with 
its  roots  and  stumps,  its  bark,  branches,  leaves,  and 
with  all  those  marvelous  means  with  which  plants  are 
furnished.  The  density  of  the  leaves,  the  cones  of  the 
pines  and  the  fir,  the  endless  number  of  branches  in- 
creasing in  size  from  the  top  of  the  trees  downwards 
from  tier  to  tier  and  from  storey  to  storey,  the  roughness 
of  the  thick  bark  itself  sometimes  supplied  with  scales, 
the  crevices,  the  gummy  and  sticky  sap  all  are  suited 

1  Cf.  §  279  ante. 


466     PROPERTY  IN  FORESTS  AND  MINES 

to  put  obstacles  in  the  way  of  the  flow  of  the  water. 
Stoppani  thinks  that  landslides  are  caused  exclusively 
by  subterraneous  infiltration  and  circulation  of  water. 
Now  woods  in  the  first  place  hold  together  the  loose 
earth  by  the  intersection  of  their  roots,  in  the  second 
place  the  rain  water  is  delayed  in  falling  directly  to  the 
ground,  which  it  cannot  do  except  slowly  through  such 
a  filter.  In  the  other  case  it  is  natural  that  erosion 
gains  power.  Messadaglia  has  learnt  some  of  the  un- 
believable effects  of  deforestation  through  the  obser- 
vation and  concrete  study  of  corresponding  localities. 
Such,  according  to  circumstances,  are  the  washing  away 
of  water-sheds,  the  suppression  of  springs,  the  formation 
of  torrents,  the  alteration  in  the  course  of  the  torrential 
rains,  and  the  rising  of  the  river-beds.  If  it  is  a  question 
of  stating  the  effects  in  determinate  localities,  you  must 
understand  that  one  must  give  attentive  consideration 
to  the  place  itself  and  the  difficult  comparison  of  it 
with  other  places  in  similar  and  different  conditions, 
and  with  its  prior  state.  Then  from  such  a  starting 
place  one  should  enlarge  the  argument  by  the  sum  of  me- 
teoric and  hydrographic  conditions  in  an  extended  terri- 
tory. The  question  becomes  at  the  root  very  intricate, 
depending  upon  various  local  conditions.  The  solution 
in  such  hypotheses  is  not  fully  ascertainable  and  much 
less  can  it  be  raised  to  a  general  doctrine.  Thus  it  is 
not  possible  to  determine  positively  the  influence  of 
forests  on  the  quantity  and  annual  division  of  the  rain- 
fall without  taking  into  account  the  proximity  of  vast 
evaporating  basins  and  the  degree  of  temperature,  the 
prevailing  winds,  and  the  typographic  structure  of  the 
surface  of  the  earth.  It  may  also  be  possible  that 
the  influence  of  the  woods  is  affected  by  other  factors. 
As  to  the  action  of  forest  vegetation  on  the  division  of  the 
rain-water  for  the  year  or  in  general  from  one  period  to 


REGULATION  OF  CONTROL  467 

another,  it  is  necessary  to  look  at  other  determining 
causes,  such  as  the  temperature,  winds,  cosmic  order  of 
the  soil,  and  difference  in  geographical  latitude.  As  to  the 
velocity  of  the  flow,  the  condition  of  the  soil,  whether  it 
be  wooded  or  bare,  is  a  ruling  factor ;  the  woods  modify 
the  absorption  and  decrease  the  speed  of  streams,  espe- 
cially along  the  water-sheds,  to  a  relatively  greater 
extent,  the  steeper  the  incline.  In  conclusion  the  geo- 
metric action  of  the  forests,  that  is,  their  influence  on  the 
quantity  and  regulation  of  the  rains,  is  only  modifying, 
secondary,  and  particular  in  respect  to  those  other 
causes  which  are  called  primary  and  general,  because 
they  have  relation  to  the  fundamental  condition  of  the 
rain.  Stronger  and  sometimes  decisive  is  the  action  of 
the  forest  in  regard  to  infiltration,  although  here  too  we 
must  be  on  our  guard  against  statements  too  universal 
and  absolute. 

§  285.  The  Regulation  of  Control  is  Difficult.  Ad- 
mitted that  for  purposes  of  the  regularity  and  conserva- 
tion of  the  streams  and  of  the  territorial  conformation, 
control  should  be  established  over  forests  situated  on 
mountain  sides,  it  is  a  question  if  it  should  be  imposed 
and  have  the  same  extent  and  same  general  form  for 
meteorological  and  hygienic  reasons  in  woods  situated 
on  plains.  Humboldt  believes  that  the  forests  operate  as 
refrigerators  defending,  as  we  have  said,1  the  earth  from 
the  raging  heat  of  the  sun,  increasing  growth  of  the 
grass,  and  increasing  with  the  multiplication  of  leaves 
such  growths  as  are  burnt  up  by  the  sun.  Arago  affirms 
that  forests  can  in  certain  cases  make  the  climate  more 
mild,  and  in  others  produce  a  contrary  effect.  Gay- 
Lussac  thinks  that  we  cannot  be  positive  about  the  real 
influence  of  woods  on  the  climate  of  a  country  and  that 
such  a  question  is  complicated  and  seems  impossible  or  at 

lCf.  §  381  ante. 


468     PROPERTY  IN  FORESTS  AND  MINES 

least  most  difficult  of  solution.  Boussingault  observes  that 
in  Central  America,  in  the  same  latitude,  at  the  same 
height  above  sea  level,  and  under  conditions  geographi- 
cally identical,  the  forests  cool  invariably  the  climate. 
Becqueral  cites  that  fact  and  explains  it  as  Boussingault 
did,  teaching  that  the  vast  influence  of  forests  on  the  cli- 
mate depends  on  their  extent,  the  height  and  nature  of 
the  trees ,  the  power  of  evaporation  possessed  by  the  leaves , 
their  facility  in  heating  or  cooling,  and  the  inherent  quali- 
ties of  the  physical  state  of  the  soil  and  sub-soil.  Forests 
form  a  defense,  he  adds,  against  low  winds ;  such  a  defense 
is  naturally  proportionate  to  the  height  of  the  trees. 
We  can  point  out  that  the  wet  air,  containing  miasmata, 
loses  them  in  crossing  a  forest.  Rigaud  de  Lille  shows  that 
there  are  certain  regions  in  Italy  where  the  interposition 
of  the  defense  of  the  trees  keeps  fevers  away,  while  the 
uncovered  parts  remain  exposed  to  the  infection.  Marsh, 
in  his  remarks,  of  great  weight  as  always,  about  the  effect 
of  deforestation  in  relation  to  meteorology,  does  not  fail 
to  state  the  great  uncertainty  that  there  is,  but  adds  that 
hailstorms,  almost  always  united  with  electric  disturb- 
ances, seem  to  be  of  greater  frequency  and  intensity  in 
definite  relation  to  the  decrease  of  the  forests.  In  such 
a  diversity  of  opinions,  which  in  particular  cases  may  all 
be  true,  Messadaglia  reaches  the  sensible  conclusion 
that  we  should  consider  the  question  of  the  thermomet- 
ric  influence  of  forests  from  a  scientific  point  of  view  sub 
judice.  It  is  true  that  Arago,  Gay-Lussac,  Becqueral, 
and  Marsh  are,  as  we  have  seen,  very  far  from  an 
absolute  and  certain  solution.  As  long  as  there  is  any 
doubt,  the  wise  legislator  cannot  create  a  general  and  fixed 
control,  on  account  of  the  influence  of  heat  and  cold, 
but  should  bring  it  about  by  a  series  of  examinations  of 
the  particular  regional  conditions.  He  should  conduct  it 
in  such  a  case  as  he  has  conducted  it  in  respect  to  the  rice 


CONTROL  NOT  INDUSTRIAL  469 

fields.  He  should,  that  is,  leave  a  large  margin  to  the 
variable  element  of  locality,  where  the  control  cannot 
be  special  and  changeable,  if  he  wishes  to  accomplish  his 
purpose. 

§  286.  Control  Should  Not  be  Industrial.  Not  a  few 
believe  that  the  control  of  forest  land  is  necessary,  no 
matter  where  it  is  situated,  for  the  protection  of  the 
lumber  industry.  Now  this  view  has  had  weight  in 
the  laws  from  the  XVI  Ith  Century  onwards  and  seems 
to  have  maintained  itself  in  our  days  by  the  increasing 
danger  of  the  failure  of  wood  for  heating  and  building 
as  a  consequence  of  the  great  deforestation.  But  we 
do  not  think  that  the  control  founded  on  motives  of 
industrial  protection  is  just.  As  we  are  open  adversaries 
of  unbridled  free  will,  we  declare  ourselves  hostile  to 
excessive  State  control.  We  wish  the  State  to  interfere 
only  where  it  is  manifest  that  individuals,  working  on 
their  own  account,  would  disregard  the  correlation  of 
interests,  which  assures  the  long  existence  of  society. 
Now  this  condition  does  not  exist  and  cannot  exist  in 
relation  to  the  production  of  lumber,  because  competition 
and  freedom,  applied  to  an  industry,  are  the  only  means  of 
obtaining  the  greatest  production.  Society  will  need  lum- 
ber, and  the  business  sense  of  the  private  citizen  will 
supply  this  need  by  a  sufficient  and  appropriate  cultiva- 
tion of  the  forests.  The  price  of  forest  products  increases 
from  day  to  day  and  constitutes  a  growing  impulse  to 
forest  industries  besides  being  a  guaranty  of  a  settled 
business.  It  is  true  that  the  movements  of  the  lumber 
market  are  not  general  and  do  not  always  follow  the  same 
direction  and  depend  often  upon  local  and  changeable 
conditions,  but  it  is  none  the  less  true  that  there  is  a  not- 
able increase  in  the  price  of  forest  products.  To-day  the 
woodland  is  markedly  decreased  in  almost  all  parts  of 
the  world,  and  therefore  its  cultivation  for  exportation 


470     PROPERTY  IN  FORESTS  AND  MINES 

cannot  fail  to  be  lucrative,  although  sometimes  the 
great  expense  of  transportation  and  the  competition 
of  other  countries  reduce  the  gains  not  a  little.  It  is, 
however,  useful  to  observe  that  the  control  of  forests 
on  plains  once  taken  away,  the  expense  of  trans- 
portation of  wood  is  not  in  the  last  analysis  as  grave  a 
difficulty  as  it  would  be  if  the  wood  had  to  descend  from 
a  mountain  side.  Let  us  imagine  that  with  the  system  of 
personal  interest  and  of  freedom  there  can  still  be  a  cer- 
tain lack  of  lumber.  Can  there  not,  for  example,  be 
introduced  in  the  workshops  materials  which  will  take 
the  place  of  wood,  as  anthracite,  lignite,  or  peat,  whose 
use  could  be  made  practical  with  but  little  expense  and 
a  few  practical  lessons?  Neither  can  it  be  opposed  to  such 
ideas  that  it  is  not  possible  to  satisfy  great  national  inter- 
est, as  the  public  marine  service,  railroads,  and  telegraphs, 
because  abolishing  the  servitude  of  the  "martellata,"  the 
modern  States  rendered  inalienable  a  part  of  their  forests 
and  thus  destined  it  to  civil  and  military  uses.  It  is 
sometimes  affirmed  that  such  reservations  are  not  suf- 
ficient in  certain  occasions  in  the  life  of  people,  but  it  is 
not  thinkable  that  the  remaining  private  woods,  be  they 
within  or  without  the  national  territory,  cannot  more  or 
less  supply  the  hypothetical  lack. 

§  287.  Control,  Based  on  Physical  Harm,  Does  not 
Entail  Indemnity.  If  it  is  true  that  the  State,  as 
Beccaria  teaches,  should  act  in  cases  in  which  it 
is  seen  that  the  private  interests  will  never  or  will 
too  late  harmonize  with  the  public  interest,  it  is 
necessary  to  conclude  that  control  based  on  the  con- 
sideration of  economic  order  has  no  other  logical 
reason  for  existence.  The  constant  and  great  pro- 
vision of  forest  material,  of  which  Marco  Balbi, 
a  member  of  the  Venetian  Senate,  speaks,  should  limit 
forest  property  only  to  prevent  the  harm  result- 


HISTORY  OF  MINING  LAW  471 

ing  from  deforestation  to  water  courses,  industries, 
agriculture,  to  geographic  conformation,  and  in  certain 
places  to  the  health  of  the  population.  Every  other 
limitation  being  unnecessary  would  be  a  violation  of 
individual  freedom  in  its  relation  to  things.  The  neces- 
sary and  rational  limitations  can  be  composed  without  any 
obligation  of  indemnity  because  it  does  not  hinder  the 
owner's  use  thereof  but  merely  forbids  its  abuse,  as  a 
damage  to  the  rights  and  interests  of  others.  The  control 
is  purely  negative,  created  to  hinder  the  owner  acting  in  a 
way  harmful  to  society  on  his  own  land  situated  on 
mountain  sides  by  deforestation  or  unsodding  and  in 
such  terms  of  fact  the  conception  of  indemnity  does 
not  correspond  to  any  principle  of  law. 

§  288.  Special  Conditions  of  Mining  Require  Special 
Laws.  It  is  indubitably  true  that  mining  law,  founded  on 
the  particular  nature  of  this  kind  of  extractive  industry, 
should  follow  in  the  phases  and  be  modified  according 
to  the  development  of  the  industry  itself.  When  mines 
were  merely  holes  in  the  soil,  the  property  in  them  was 
considered  as  part  of  estate  in  the  land,  but  when  the 
mineral  needed  deep  caves,  a  network  of  tunnels,  pits, 
and  galleries,  it  became  little  by  little  a  property  dis- 
tinct from  that  of  the  super-soil.  At  first,  when  the 
industry  was  not  progressive,  the  Roman  law  gave  the 
mineral  to  the  owner  of  the  land;  then  when  there  had 
been  some  development,  especially  in  the  marble  quar- 
ries, in  the  time  of  Constantine,  it  allowed  the  extrac- 
tion of  marble  from  another's  territory. 

§  289.  History  of  Mining  Law.  In  the  age  after 
the  fall  of  the  Empire  there  arose  clearly  the  same 
tendency  in  the  industry  as  in  its  law.  There  was 
an  epoch  in  which  the  industry  was  elementary  and 
entirely  superficial.  In  such  an  epoch,  the  right  of 
the  owner  of  the  land  controlled  absolutely.  When  the 


472     PROPERTY  IN  FORESTS  AND  MINES 

industry  began  to  demand  large  capital,  the  owner  of 
the  land  recognized  the  freedom  of  the  mine,  keeping 
the  power  not  only  to  control  its  development  but 
also  the  right  of  entrance  and  supervision.  Later 
these  rights  belonged  to  the  feudal  lord;  the  owner 
of  the  surface  had  his  moiety  in  the  output  of  the  mine 
besides  certain  other  quota  and  proportion  at  the 
mine's  mouth.  Regal  power  was  substituted  in  the 
place  of  the  power  of  the  lord;  the  mine  was  truly  part 
of  the  regalia;  the  State,  which  had  eminent  domain 
over  the  entire  territory,  granted  out  the  use  of  the  mine 
and  directed  its  working  and  placed  an  impost  on  it. 
The  owner  of  the  land  in  this  period  had  the  same 
rights  which  he  enjoyed  through  feudal  legislation. 
Then  the  industry  was  transformed,  the  modern  mine, 
a  subterraneous  world  in  which  a  whole  population  of 
laborers  is  employed,  was  born;  the  freedom  of  the  mine 
began.  The  right  to  a  mine  was  attributed  to  the  dis- 
coverer and  contractor,  with  the  obligation  of  holding 
the  owner  of  the  land  safe  from  harm.  A  State  can 
no  longer  exercise  royal  prerogatives;  it  does  not  take 
part  in  mining  as  formerly,  but  determines  by  laws 
and  positive  recognition  the  rights  of  those  who  are 
interested  therein,  and  intervenes  to  protect  morals, 
policy,  justice,  and  civilization  in  its  exploita- 
tion. From  such  fugitive  remarks  on  the  historical 
development  of  mining  and  its  law,  the  notion  of 
the  emancipation  of  mineral  products  from  the  soil 
is  clear.  Now  we  must  see  if  such  a  tendency,  which 
has  been  developing  throughout  history,  conforms  to 
reason. 

§  290.  Objections  to  the  Emancipation  of  Mineral  Prop- 
erty. The  followers  of  the  system  which  attributes  the 
mineral  to  the  owner  of  the  soil  object  in  the  first  place 
that  the  area  covered  by  the  subsoil  is  a  simple  geo- 


OBJECTIONS  TO  EMANCIPATION         473 

metrical  surface;  that  the  tillable  land,  which  is  not 
limited  to  the  first  strata  of  vegetable  earth,  belongs 
to  the  agriculturists,  and  that  the  mineral  is  part  of  the 
cultivatable  soil.  The  answer  to  this  objection  is  not 
difficult.  The  surface  is  not  separated  from  the  subsoil, 
and  is  not  a  plane  with  length  and  breadth  but  no 
depth.  When  we  speak  of  the  surface,  we  mean  as  much 
of  the  subsoil  as  can  be  useful  to  the  owner  and  can 
become  material  for  his  practical  interest.  We  admit 
the  impossibility  of  separating  absolutely  the  surface 
and  the  subsoil,  but  it  does  not  appear  legally  impossible 
that  one  man  should  be  the  owner  of  the  surface  and  the 
first  soil  and  another  the  owner  of  the  cavities  of  the 
second  crust.  Such  a  state  of  affairs  can  be  brought 
about  by  contract  or  will,  also  by  the  statutory  regula- 
tion which  recognizes  in  the  owner  of  the  soil  the  control 
of  the  mineral.  On  the  other  hand,  we  must  remember 
that  the  limits  of  the  surface  are  not  always  those  of  the 
minerals  because  the  latter,  according  to  the  testimony 
of  geologists,  are  irregular  and  peculiar  in  extent,  with 
innumerable  ramifications  of  veins.  And  science  in  its 
turn  contributes  always  more  to  the  separation  of 
mineral  property  from  the  control  of  the  soil,  as  becomes 
evident  from  the  various  methods  used  in  ancient  and 
modern  mining:  the  ancient  was  shallow,  and  the  modern 
sometimes  very  deep.  They  oppose  in  the  second  place 
the  distinction  of  the  two  domains,  on  the  ground 
that  no  one  has  a  right  to  enter  the  land  of  another 
and  that  the  owner  of  the  land  gets  his  mineral  by 
the  right  of  occupancy.  As  to  the  first  part  of  such 
an  objection  we  can  note  that  the  right  of  entering  into 
the  land  of  another  for  such  work  and  discovery  could  be 
caused  by  a  legal  servitude  established  with  equitable 
compensation  in  favor  of  the  owner  of  the  soil.  There 
are,  however,  cases  in  which  the  search  and  discovery 


474     PROPERTY  IN  FORESTS  AND  MINES 

could  be  made  without  having  to  enter  the  land,  but 
rather  by  exploring  from  one's  own  land  under  the  other's 
at  a  depth,  for  example,  of  a  thousand  feet.  As  to 
the  second  part  we  can  point  out  that  the  primitive  or 
derivative  methods  of  acquisition  presuppose  always 
knowledge  and  will.  A  mode  of  acquisition  is  a  method 
of  "posse"  and  that  power  demands  "velle"  which  in  turn 
demands  the  "nosse."  How,  therefore,  can  the  owner 
of  the  land  occupy  in  a  true  sense  of  the  word  a  mine 
which  he  does  not  know  of  ?  There  is  no  rational 
possibility  of  the  control  of  the  unknown  or  the  undefined. 

§  291.  Title  to  Minerals  is  Not  by  Accession.  Op- 
ponents of  the  system  of  separation  allege  then  the  right 
of  accession  as  determined  by  the  modern  laws,  that  is, 
in  its  widest  sense,  and  the  doctrine  of  treasure  trove 
to  aid  the  owner  of  the  soil.  As  to  the  theory  of 
accession,  it  takes  no  intelligence  to  see  that  the 
mineral  is  not  a  fruit;  it  is  not  something  self- 
perpetuating.  Neither  is  it  found,  as  far  as  the  use  of 
the  soil  is  concerned  —  a  relation  that  every  accession 
must  have  with  its  principal.  We  can  also  see  that 
the  value  of  the  mineral  much  exceeds  that  of  the 
land,  and  so  it  is  very  permissible  to  doubt  if  the  soil 
be  the  principal.  In  respect  to  the  theory  of  treasure 
trove,  we  must  point  out  that  we  can  draw  no  strong 
analogy  to  the  question  of  minerals  here,  because  the 
treasure  is  personalty  and  the  mineral  is  not,  and  because 
the  division  into  equal  parts  of  the  property  in  the 
treasure  is  ordered  by  the  statute  only  when  it  be  found 
by  chance,  but  the  mineral  can  be  discovered  and 
usually  is  discovered  not  by  chance,  but  by  virtue  of 
constant  study  and  patient  experiment. 

§  292.  Title  to  Minerals  Cannot  be  Proved  by  Roman 
"Fictiones."  Many  invoke  the  authority  of  the  Roman 
Law,  according  to  which  the  scholiasts  say  that  the 


TITLE  TO  MINERALS  475 

owner  of  the  soil  is  the  owner  of  a  column  of  air  to 
heaven  and  of  a  column  of  earth  to  "infernus,"  but 
such  statements  are  a  hyperbole  invented  by  Gino  da 
Pistoia  and  have  no  foundation  in  the  sources  of 
Roman  law,  which  teaches  different  limitations  of 
the  property  right  in  regard  to  what  is  above 
and  below  the  soil.  Justinian,  for  example,  says  that 
the  owner  of  a  building  cannot  so  build  as  to  pre- 
vent the  wind  reaching  the  thrashing  floor  of  his 
neighbor.  A  copper  mine  found  in  land  after  its  sale 
belonged  to  the  finder.  "Neminem  nee  vendere  nee 
excipere  quod  non  sit  et  lapidicinas  nullas  esse  nisi  quae 
appareant  et  caedantur,"  Labeo  taught.  Ulpian  wrote 
on  the  subject  of  usufruct:  "Inde  est  quaesitum,  an 
lapidicinas  vel  cretifodinas  vel  aredifodinas  ipse  instituere 
possit?  Et  puto  etiam  ipsum  instituere  posse  si  non  agri 
partem  necessarium  huic  rei  occupaturus  est.  Proinde 
venas  quoque  lapidicinarum  et  huiusmodi  metallorum 
inquirere  poterit.  Ergo  et  auri  et  argenti  et  sulpheris  et 
aeris  et  ferri  et  caeterorum  fodinas  vel  quas  paterfamilias 
instituit  exercere  poterit  vel  ipse  instituere  si  nihil  agri- 
colturaenocebat."  Constantine  admitted  the  free  right 
to  quarry  marble,  and  there  was  recognized  by  the  other 
emperors  a  right  to  a  tenth  in  favor  of  the  owner  of  the 
soil.  In  other  words  the  miner  could  give  indemnity 
for  harm  and  not  recognize  the  right  of  the  owner  of 
the  surface.  Rights  for  the  Roman  jurisconsults 
extended  only  so  far  as  they  were  useful;  when  the 
utility  was  lacking  the  right  ended.  I  can  force  my 
neighbor  to  cut  the  branches  of  his  tree  which  extend 
over  my  land  from  a  height  of  more  than  fifteen  feet. 
I  can  use  my  right  if,  in  sinking  the  well  in  my  land,  I 
interrupt  a  water  course  which  supplies  my  neighbor, 
but  I  cannot  tap  this  course  at  my  pleasure  and  waste 
the  water.  The  owner  can  follow  the  vein  of  metal 


476     PROPERTY  IN  FORESTS  AND  MINES 

from  his  land  and  acquire  property  in  it  "jure  occupa- 
tionis,"  but  not  because  of  his  property  in  the  soil. 

§  293.  Property  in  the  Air.  There  can  be  no 
doubt  that  atmospheric  space  like  the  soil  and  sub- 
soil is  an  object  of  private  property,  because  the  use 
and  enjoyment  of  the  soil  would  not  be  possible 
unless  the  owner  had  the  right  to  enjoy  the  space 
above.  It  is  quite  impossible  to  say  that  atmospheric 
space  is  not  substantial,  is  not  a  thing,  and  does  not, 
therefore,  constitute  material  for  property,  because  it  is 
a  form  of  concrete  space  and  as  such  has  objective 
reality  which  is  useful  and  valuable.  And  it  is  inexact 
to  consider  the  atmosphere  as  a  common  object  not  sus- 
ceptible to  private  ownership,  because  common  objects 
are  incapable  of  exclusive  ownership  in  their  totality,  but 
not  in  their  parts.  The  sea  is  a  common  object  and  yet 
it  is  reducible  to  property  in  the  parts  near  the  shore. 

§  294.  Property  should  beLimited  by  Practical  Interest. 
Neither  is  it  true  that  the  subsoil,  not  lending  itself 
to  common  use,  is  a  "res  communis."  It  can  rather  be 
regarded  as  a  "res  nullius,"  and  as  such  is  capable  of 
ownership.  The  general  principle  is  this:  Property  in 
the  air  and  the  subsoil  is  one  with  the  property  of  the  soil. 
Whoever  acquires  the  property  in  the  soil  acquires  it  in 
the  atmosphere  above  and  the  earth  beneath.  There 
is  no  need  of  a  special  occupancy  for  either.  But 
property  in  the  atmosphere  and  the  subsoil  is  limited  as 
any  other  property  by  the  needs  of  social  coexistence 
and  the  activity  and  the  general  interests  of  man. 
Private  ownership  should  work  for  the  good  of  law 
and  is  justified  by  that  idea.  This  is  not  attained 
when  a  claim  is  exorbitant,  or  contains  elements  of 
power  not  necessary  for  its  exercise,  or  does  not  accord 
with  the  conception  of  the  wise  distribution  of  goods 
and  rational  moderation  therein,  which  Vico  teaches. 


PROPERTY  SHOULD  BE  LIMITED         477 

This  shows  the  social  limit  of  private  property,  which 
is  the  activity  developing  as  a  practical  interest  of 
another  human  subject.  The  activity  of  man  can- 
not be  separated  from  the  good,  the  useful,  and  the 
advantageous,  as  these  things  cannot  be  understood 
without  the  activity  of  which  they  are  the  terms. 
Ihering  declares  clearly  the  practical  interest  of  the 
owner  of  the  soil  in  the  column  of  air  and  subsoil.  His 
practical  interest  in  the  column  of  air  is  that  no  one 
shall  take  away  from  him  the  air,  light,  or  rain,  hinder 
him  from  building,  or  make  him  give  up  his  position 
on  his  land  on  account  of  pestilential  odors,  smoke, 
and  dust,  but  he  has  no  right  to  stop  birds  or  bal- 
loons passing  through  the  aerial  space.  The  Roman 
jurisconsults,  who  had  an  exquisite  sense  of  the  realities 
of  life,  never  exaggerated  the  right  of  the  owner  and 
maintained  it  on  the  base  of  practical  interests  of  which 
they  had  an  admirable  intuition.  Practical  interest  is 
the  limit  also  of  the  owner's  right  in  the  subsoil,  and 
therefore  he  has  no  right  to  hinder  another  from  gain- 
ing from  the  subsoil  without  harm  to  himself  any  utility 
profitable  to  him.  Such  utility  is  not  referable  to  the 
actual  continual  and  ordinary  purpose  of  the  land,  to 
its  cultivation  or  regular  use,  and  is  without  the  sphere 
of  the  practical  interest  of  its  owner.  It  is  not  reason- 
able to  consider  that  the  possibility  of  a  different  en- 
joyment is  a  practical  interest,  arguing  from  the  present 
state  of  technical  and  industrial  means,  because  in  such 
an  hypothesis  the  discoverer  would  only  rarely  have 
the  right  to  the  minerals  which,  in  the  greater  number  of 
cases,  can  be  enjoyed  by  the  owner  of  the  soil  if  he  takes 
advantage  of  existing  scientific  and  technical  means.  In 
practical  interests,  thus  defined,  it  is  not  the  cause  of  the 
discoverer  which  needs  a  broad  interpretation,  but  rather 
that  of  the  owner  of  the  soil.  There  is  a  strong  presump- 


478      PROPERTY  IN  FORESTS  AND  MINES 

tion  that  it  is  more  just  to  give  the  former  the  ownership 
of  the  mine.  The  mineral  discovered  cannot  belong  to 
the  owner  of  the  soil,  either  by  the  theory  of  labor  or 
personality.  According  to  the  theory  of  labor  the 
property  should  be  placed  where  the  individual  activity 
lies  and  the  owner  of  the  soil  who  has  not  been  active 
cannot  be  the  owner  of  the  mine.  It  has  been  the  activ- 
ity of  the  discoverer,  and  to  him  the  mineral  should  belong. 
Starting  out  with  the  conception  of  individual  person- 
ality which  develops  in  things  and  stamps  on  them  its 
mark,  making  them  its  own,  the  same  conclusion  is 
reached,  because  the  discoverer  and  not  the  owner  of 
the  soil  has  been  active  in  the  mine. 

§  295.  Economics  Favor  the  Freedom  of  the  Mine. 
As  to  the  economic  reasons  in  aid  of  the  present 
thesis  one  must  see  that  Dunoyer,  in  his  book  "De  la 
Liberte  du  Travail,"  contradicts  himself  when  he  looks 
upon  mining  as  an  industry  separate  and  distinct 
from  agriculture  and  then  attibutes  it  to  the  owner 
of  the  soil.  Sella,  a  competent  authority,  shows  that  the 
cultivation  of  the  mine  demands  a  strict  unity  of  con- 
ception, and  therefore  the  mine  cannot  be  divided  like 
land.  The  mining  industry  encounters  many  finan- 
cial difficulties  in  making  deep  tunnels  where  the  prop- 
erty is  much  scattered.  With  the  increase  of  depth  the 
expenses  increase;  therefore  from  the  larger  mines, 
conducted  with  intelligence  and  economy,  there  are  not 
as  large  returns  as  are  offered  by  ordinary  industries. 
Let  there  be  added  that  the  pretension  of  the  owner  of  the 
soil  to  an  aliquot  share  of  the  mineral  lessens  the  depth 
of  the  mine  and  has  no  regard  for  the  future.  Besides, 
experience  proves  that  the  pretension  of  the  owners  of 
the  soil  to  be  representatives  of  the  State,  the  presump- 
tion that  their  wealth  is  more  staple,  their  small  love  of 
progress  and  their  fear  of  destroying  the  productivity 


FREEDOM  OF  THE  MINE  479 

of  the  soil  hinder  the  development  of  the  mineral 
industry  in  countries  in  which  the  system  of  the  inde- 
pendence of  mines  is  not  recognized.  Neither  can  we 
hope  that  the  greater  part  of  these  troubles  would 
disappear  with  the  association  of  the  mine  owners, 
because  such  associations  meet  great  practical  difficul- 
ties, and  it  is  inexpedient  to  create  difficult  conditions, 
trusting  to  conquering  them  through  the  genius  and 
ability  of  individuals.  From  such  ideas,  which  corre- 
spond to  the  real  state  of  affairs  and  the  special  condi- 
tions of  the  development  of  the  industry,  comes  the  action 
of  the  State  at  the  present  day.  A  State  should  remove 
the  obstacles  to  the  industry,  should  promote  the  dis- 
covery of  minerals,  should  aid  the  industry  by  geo- 
graphical descriptions,  should  create  statutes  to  prohibit 
the  present  generation  from  taking  all  the  mineral,  should 
govern  the  employment  of  women  and  children  in  mines, 
should  establish  school  regulations,  should  limit  the  work- 
ing day  of  laborers  of  this  class,  should  enforce  precau- 
tions of  safety  and  hygiene  to  avoid  the  deleterious 
action  of  gases  and  explosions,  should  promote  chari- 
table and  pensioning  societies  among  the  workmen,  and 
should  facilitate  the  transportation  of  mineral  products. 
But  it  should  not  do  more  than  protect  the  industry 
and  make  technical  rules.  It  should  decide  questions 
of  property  in  mines,  but  with  the  object  of  such 
decision  it  should  not  create  a  property  but  merely 
recognize  and  define  it,  as  the  decree  of  inheritance  of 
the  Austrian  Code  recognizes  and  defines  a  preexisting 
law. 


480  INDUSTRIAL  PROPERTY 


CHAFER  VIII 
INDUSTRIAL  PROPERTY 

THE  MERCHANDISE  OF  LABOR  AND  ITS  PRICE.  —  WORK  AS 
PROPERTY.  — UNIONS  AND  STRIKES.— THE  INDUSTRIAL  JURY.— 
THE  OWERSHIP  OF  CAPITAL  AND  PROPERTY. —COLLECTIVISM 
AND  MUTUALISM.— THE  THEORY  OF  MARX.  — CRITICISM  OF  COL- 
LECTIVISM AND  OF  THE  THEORY  OF  MARX.  — TRUSTS. 

§  296.  Industrial  Property  is  Important.  Industrial 
property  arises  in  manufacturing  industries.  It  finds 
its  justification  in  the  chief  base  of  property,  that 
is,  in  the  principle  of  personality.  It  deserves  a  special 
study  not  only  because  of  the  great  importance  it  has 
acquired  in  modern  times  but  because  it  is  made  the 
object  of  grave  objections  and  criticisms  which  funda- 
mentally are  aimed  at  private  ownership  in  general. 
Here,  as  in  similar  discussions,  it  is  necessary  to  re- 
member not  a  few  difficult  economic  theories  in  order 
to  understand  and  examine  the  facts  juristically.  Law 
is  always  a  proportion,  a  rule,  a  measure  which  attaches 
diversely  according  to  the  nature  of  the  object  to  which 
it  is  applied.  The  matter  in  our  case  is  essentially 
economic. 

§  297.  Fundamentally  the  Interests  of  Capital  and 
Labor  are  One.  A  manufacturing  industry  presupposes 
labor  and  its  instruments.  The  instruments  of  labor 
are  primitive  and  derivative ;  the  primitive  are  natural 
forces,  the  derivative  are  comprehended  by  capital. 
Between  labor  and  capital  there  is  not  and  cannot  be 
an  original  and  natural  opposition,  because  the  former 


CAPITAL  AND  LABOR  481 

is  the  capital  of  to-morrow,  and  the  latter  is  the  labor 
of  yesterday,  as  we  have  said  more  than  once.1  In 
the  abstract,  therefore,  labor  which  robs  capital  robs 
itself,  and  if  labor  is  the  father  of  capital,  capital  in  its 
turn  nurtures  labor  and  becomes  its  patron  and  guide. 
In  concrete,  the  interest  of  him  who  demands  labor 
is  to  acquire  it  at  the  lowest  price,  and  the  interest 
of  him  who  offers  it  is  to  sell  it  as  dear  as  he  can. 
There  occurs,  therefore,  the  same  struggle  as  can  be 
seen  in  every  active  exchange  between  consumer  and 
producer,  since  one  wants  the  lowest  and  the  other 
the  highest  price.  Furthermore,  the  conditions  of  ex- 
change can  be  good  for  one  contracting  party  and  bad 
for  the  other.  What  causes  the  greatest  harm  to  labor 
depends  not  upon  the  egoism  of  the  capitalists  but 
upon  the  poverty  of  the  workman  who,  with  a  large 
family  to  support,  saves  little  or  nothing.  The  com- 
petition of  those  who  offer  labor  reduces  the  price, 
and  the  decrease  in  wages  exerts  a  sinister  influence 
on  the  conditions  of  the  workman.  But  the  price  of 
labor  differs  from  other  sales  in  this:  that  the  vendor  of 
labor  is  bound  to  his  goods  while  the  vendor  of  other 
objects  is  separated  from  them.  Whence  it  follows  that 
the  price  of  labor  touches  the  workman  directly,  in 
that  it  restricts  him  if  it  decreases,  and  extends  his 
needs  if  it  goes  up.  It  diminishes  or  promotes  the 
development  of  his  life  and  morals.  In  this  sense 
alone  the  workman  is  bound  to  his  property  in  labor. 
He  does  not  become  a  means  or  a  part  of  the  person- 
ality of  the  master,  as  was  the  ancient  belief.  Further- 
more, the  workman,  at  least  as  an  individual  without 
coalition,  cannot  in  crises  withdraw  the  offer  of  labor 
in  order  to  keep  the  price  up,  because  if  he  does  not  work 
he  dies  of  hunger.  On  the  other  hand  the  ordinary 
lCf.  §  262  ante. 


482  INDUSTRIAL  PROPERTY 

vendor  in  such  an  event  lessens,  suspends,  and  abandons 
production  without  suffering  therefrom. 

§  298.  Labor  is  Merchandise.  Some  writers  on  this 
subject  do  not  admit  that  labor  is  an  object  of  ex- 
change, alleging  that  it  is  an  agent  of  production  con- 
sisting of  human  activity,  and  not  a  product  susceptible 
of  accumulation.  They  hold  that  the  hiring  of  labor 
lacks  the  character  of  a  true  contract  because  the  work- 
man is  forced  to  sell  his  labor  if  he  does  not  wish  to 
starve,  while  the  capitalist  is  free  to  employ  the  workman 
or  not.  They  have  not  considered  that  the  conception 
of  an  agent  or  factor  of  production  in  general  is  not  repug- 
nant to  that  of  an  object  of  exchange.  In  fact,  both  the 
capital  and  the  agent  or  factor  of  production  are  mer- 
chandise. Labor  is  not  properly  a  part  of  man  but  is  the 
exercise  of  his  activity  over  the  forces  of  nature  regulated 
by  the  laws  of  least  resistance,  the  universal  tendency  of 
entities  to  accomplish  the  greatest  result  with  the  least 
expense.  Man  is  not  the  instrument  or  coefficient  of  pro- 
duction, but  the  subject  and  end.  Nature  is  the  object 
and  labor  a  living  bond  between  man  and  the  outside 
world.  Labor  as  the  activity  of  the  person  is  not  really 
merchandise.  It  becomes  such,  not  in  its  potentiality 
and  internal  extent,  but  as  it  develops  and  manifests  it- 
self in  separate  operations  and. definite  ends.  Not  the 
entire  personal  activity,  confusable  with  the  person  and 
inalienable,  becomes  merchandise  by  the  partial  and  tem- 
porary exercise  thereof.  In  this  meaning  labor  has  a 
value  of  exchange.  It  is  reducible  to  money  and  becomes 
part  of  one's  estate.  Neither  is  labor,  in  one  sense,  alone 
incapable  of  accumulation,  because  there  are  objects 
which  are  in  the  same  condition;  for  example,  a  fresh  egg 
or  a  strawberry,  to  which  nobody  denies  the  character 
of  merchandise.  It  is  true  that  a  capitalist  is  free  not 
to  ask  for  the  work,  but  only  on  condition  that  he  does 


PRICE  OF  LABOR  TWOFOLD  483 

not  employ  his  capital;  if  he  wishes  to  make  profits 
from  his  wealth  he  must  have  workmen ;  —  only  the 
capitalist  can  wait  and  take  his  leisure  better  than  the 
workman. 

§  299.  Price  of  Labor  is  Twofold,  the  Current  and 
Natural.  The  price  of  labor  is  twofold,  current  and 
average.  The  current  is  determined  by  the  offer  and  de- 
mand; the  average  is  a  point  toward  which  the  oscilla- 
tions of  the  other  tend,  and  represents  the  tenor  of  life, 
that  is,  the  sum  of  satisfactions,  among  which  is  the 
accumulation  of  capital  to  which  the  working  class  is 
habituated  and  which  it  does  not  think  it  can  renounce 
without  degradation.  The  tenor  of  life  grows  with  time 
and  comprehends  new  advantages  which  at  first  the 
workman  did  not  think  it  possible  to  attain.  The 
current  wage  tends  to  become  the  average,  not  being 
able  to  mount  too  high  because  of  competition.  Neither 
can  it  descend  below  the  absolutely  necessary  wage, 
because  the  workman  would  not  have  means  to  live. 
But  it  is  not  right  to  believe  that  an  increase  of 
workmen  necessarily  produces  a  reduction  of  wages  be- 
cause such  an  increase  can  well  be  coincident  with  a 
rapid  development  of  the  industry,  in  which  case  there 
occurs  the  phenomenon  of  an  increase  of  workmen  and 
wages.  On  the  other  hand  it  is  undeniable  that  with 
economic  and  civil  progress  the  efficiency  of  moral  re- 
straints which  lead  to  foresight  and  in  which  the  intellec- 
tual faculties  are  predominant,  whose  development  is  not 
in  direct  ratio  to  the  power  of  generation,  is  more  empha- 
sized .  Statistics  show  that  in  the  more  progressive  nation 
there  is  also  more  wealth,  greater  population,  and  higher 
prices.  It  is  true  that  the  price  of  goods  has  increased  but 
it  is  not  less  true  that  wages  are  higher  than  they  were  in 
the  past.  The  famous  "iron-bound"  law  of  wages  by 
which  these  tend  to  diminish  to  the  simple  expense  of 


484  INDUSTRIAL  PROPERTY 

production  of  labor  is  not  as  iron-bound  as  Lassalle  and 
the  later  socialists  say.  The  measure  of  prices  is  bound 
up  with  the  measure  of  production  and  the  measure  of 
wages  depends  on  the  demand  for  work  and  the  demand 
for  work  depends  upon  the  quantity  of  capital.  The  quan- 
tity of  capital  depending  on  the  accumulated  production 
of  goods  and  the  demand  for  them,  the  quantity  of  pro- 
duction has  its  origin  in  the  medial  productivity  of  labor. 
With  increased  production  the  wages  should  go  up  and 
not  down.  The  "iron-bound"  law  is  such  no  longer  in  the 
face  of  the  present  organization  of  unions,  which  not  only 
prevent  the  reduction  of  wages  but  even  demand  that 
the  workman  be  given  the  greatest  amount  possible 
in  the  given  economic  situation.  We  must  not  forget 
that  the  increased  production  is  of  greatest  interest 
both  to  the  employer  and  the  workman.  The  first 
must  understand  that  good  wages  sustain  the  physical 
forces  and  awake  intellectual  qualities  in  the  workmen, 
resulting  in  better  labor.  The  second  should  remem- 
ber that  to  limit  the  production  entails  great  harm  upon 
them,  since  with  a  decrease  in  the  demand  for  work  wages 
go  down.  On  the  other  hand,  if  the  work  is  more  produc- 
tive, that  is,  more  intense  and  rapid,  production  increases 
and  the  demand  for  labor  goes  up.  On  the  other  hand, 
the  working  day,  becoming  more  intense,  cannot  fail  to 
be  shortened.  The  increase  in  wages  and  the  subsequent 
amelioration  of  the  conditions  of  the  workmen  are  not- 
ably accompanied  by  a  general  and  marked  increase  in 
production.  The  associations  of  workmen  effectively  aid 
the  raising  of  wages  and  are  most  useful  when  production 
is  tending  to  increase.  When  production  is  not  increas- 
ing an  increase  in  wages  is  not  possible,  because  there 
is  a  minimum  profit  beyond  which  the  capitalistic  em- 
ployer will  not  go.  In  these  cases  the  unions  do  not 
gain  their  object  and  do  grave  harm  to  the  interests 


PROPERTY  IN  LABOR  485 

of  the  workmen.  And  here,  too,  it  is  well  to  note  that 
the  demand  for  a  product  is  not  always  directly  in  pro- 
portion to  the  demand  for  labor,  as  in  the  case  where  the 
product  is  already  made  and  in  that  of  the  ceasing  or  de- 
creasing of  the  demand  for  some  luxury  and  the  begin- 
ning or  increase  in  the  demand  for  some  other.  In  this 
last  hypothesis  capital  leaves  one  industry  and  takes  up 
another,  and  one  cannot  say  a  priori  whether  work 
is  increased  or  not. 

§  300.  There  is  a  Property  in  Labor.  Work  from 
a  juristic  aspect  is  always  property.  It  is  a  primi- 
tive property,  if  considered  in  its  potentiality  as 
the  activity  of  a  man  tending  to  the  production  of 
wealth,  because  a  person  is  master  of  himself  and  his 
capacities  and  relations.  It  is  an  acquired  property  in 
the  exercise  of  his  acts  in  that  it  makes  something  of 
a  different  nature  from  that  of  other  salable  articles. 
Work  has  its  title  in  the  principle  of  the  inviolability  of 
the  person  and  his  possessions;  the  contract  for  work 
merits  respect  as  every  other  contract  in  which  the  use 
of  property  is  brought  into  play.  For  if  it  is  in  good  faith 
and  without  breach  of  the  freedom  of  contract,  it  is 
valid.  The  economic  law  of  supply  and  demand,  which 
determines  the  current  price  of  labor,  and  the  approach 
of  this  to  the  average  price  show  in  the  abstract;  then 
there  is  full  knowledge  and  freedom  of  exchange,  the 
principle  of  justice.  Justice  means  proportion,  equality, 
equation, — a  conception  found  in  the  economic  laws 
regarded  in  their  ideality.  In  fact,  the  demand  shows 
the  utility  of  a  thing.  The  offer  represents  the  power 
of  acquisition,  and  the  point  at  which  the  two  combine 
is  their  centre  of  balance,  their  equality  and  equation. 
We  can  see  such  a  point  in  respect  to  labor.  In 
the  case  of  a  large  offer  of  workmen,  there  is  not  a 
bare  living  and  the  satisfaction  of  the  most  urgent  needs 


486  INDUSTRIAL  PROPERTY 

which  they  want,  but  all  the  needs  of  life  always 
tend  to  increase.  Of  this,  Turgot  and  even  Ricardo 
have,  in  their  day,  given  a  clear  notion.  Labor  is  always 
property  in  every  form  of  remunerative  system,  even 
in  the  simplest  division  of  products  of  hunting  and 
fishing  by  lot.  Then  come  wages,  the  true  transaction 
between  the  workmen,  who  desire  safety  and  immediate 
pay,  and  the  capitalist,  who  desires  his  time  free.  The 
system  of  wages  has  two  defects.  It  is  founded  on  a 
time  system  and  is  not  payment  according  to  the 
quantity  and  quality  of  the  labor.  Thus  it  divides  the 
workman  and  the  investor.  Work,  according  to  amount 
done,  possible  in  cases  of  uniform  operation  and  of 
divisible  products,  stimulates  the  activity  of  the  work- 
men to  the  advantage  of  the  business.  It  is  the  most 
perfect  plan,  but  is  applicable  with  little  difficulty  only 
in  those  industries  where  the  work  has  a  great  importance 
in  comparison  with  the  fixed  capital.  The  law  should 
recognize  all  the  conditions  and  then  should  help  and 
promote  the  most  suitable  remunerative  system. 

§  301.  Unions  are  Based  on  the  Property  Right  in 
Labor.  From  the  conception  of  property  in  work  we 
come  logically  to  the  right  of  the  workmen  to  unite  in  a 
pacific  manner  not  harmful  to  the  freedom  of  others  and 
to  act  in  concert  in  order  to  increase  their  wages.  Strikes 
and  coalitions  of  workmen  form  a  kind  of  rarification 
of  labor  because  the  workmen,  trusting  to  the  common 
right  of  association,  withdraw  the  supply  at  once  and, 
stopping  the  sale  in  detail,  await  the  time  when  this 
course  shall  have  raised  their  wages.  The  workmen  in 
this  instance  do  what  every  merchant  does  to  sell  his 
goods  at  the  highest  price  to  those  who  have  need  of 
them.  The  "International  Association  of  Workmen" 
recognizes  that  strikes  are  contrary  to  economic  prin- 
ciples, increasing  the  antagonism  between  capital  and 


HISTORY  OF  UNIONS  487 

labor,  but  believes  that  during  the  existent  organization 
of  society  they  are  opportune  means  to  save  the  pay  of 
the  workmen  from  the  effect  of  the  tyranny  of  capital 
and  to  incite  the  indigent  classes  to  reform  the  laws 
and  social  institutions.  We  should  remember  that  the 
"International"  has  a  plan  of  new  birth,  attainable 
through  the  famous  social  liquidation,  which  cannot  be 
obtained  without  inspiring  the  proletariat  with  hatred 
against  society;  to  be  attained  by  raising  agitations, 
suffering,  and  misery,  the  fatal  and  only  consequence 
of  strikes.  In  this  the  coalitions,  whether  they  be 
"trades-unions"  or  "gewerkvereine,"  differ  from  the 
"International,"  because  the  unions  have  ordinarily  no 
philosophic  or  economic  program  of  regeneration.  Al- 
though they  struggle  against  capital,  it  is  not  to  destroy 
it  and  substitute  artificial  combinations,  but  merely  to 
ameliorate  the  conditions  of  the  workmen.  The  means 
possessed  by  the  unions,  without  breach  of  law,  are  only 
mutual  help  and  coalition,  the  first  defensive  and  the 
second  offensive. 

§  302.  History  of  Unions.  A  strike  is  one  of  the 
results  of  the  unions.  A  union  cannot  be  found  in 
classical  antiquity  except  as  a  commercial  monopoly, 
because,  all  labor  being  slave  labor,  wages  took  no 
part  in  the  arts  and  industries.  But  in  the  Middle 
Ages  when  labor  began  to  be  emancipated,  then 
there  arose  a  possibility  of  industrial  coalitions, 
to  which  the  penalty  of  the  Roman  law  for  com- 
mercial monopolies  was  applied,  which  made  an 
industry  a  part  of  the  State  and  took  away  the  deter- 
mination of  prices  and  wages  from  the  decision  of  the 
individuals.  Then  a  new  age  dawned,  and  together  with 
the  abolition  of  apprenticeship  came  the  freedom  of 
labor,  which  ceased  to  be  a  governmental  possession  and 
became  a  natural  right.  Freedom  of  labor  entailed  the 


488  INDUSTRIAL  PROPERTY 

juristic  recognition  of  the  union  which  could  no  longer 
be  considered  as  criminal.  But  the  French  Revolution 
was  afraid  of  every  kind  of  association  because  it  feared 
to  see  the  guilds  and  old  privileges  reestablished. 
It  did  not,  therefore,  look  upon  coalition  as  a  right. 
From  that  time  on  the  crime  of  which  we  speak  was  not 
based  upon  the  usurpation  of  a  public  power,  but  on  the 
union  or  coalition.  This  fear,  however,  disappeared 
entirely  in  the  course  of  years  and  was  changed  to  trust 
and  confidence,  because  the  State  on  the  one  hand  at 
last  understood  that  the  progress  of  time  had  rendered 
the  reinstatement  of  guilds  impossible,  and  on  the 
other,  turned  the  spirit  of  association  to  its  great 
advantage.  This  conception  has  eliminated  the  act  we 
are  discussing  from  the  category  of  crimes  in  almost  all 
the  civilized  nations. 

§  303.  Unions  are  Legal.  A  union  is  not  illegal, 
because  the  act  of  temporary  association  of  many 
people  is  not  criminal  in  itself;  neither  can  the  right 
to  use  such  means  to  raise  the  rate  of  wages  be 
illegal.  In  order  to  hold  the  contrary  it  would  be 
necessary  to  show  that  every  coalition,  however  tem- 
porary, is  against  the  law  and  that  there  is  no  prop- 
erty in  labor,  which  would  imply  a  complete  denial  of 
all  modern  civil  progress.  But,  say  the  enemies  of  the 
freedom  of  union,  the  true  foundation  of  such  a  crime 
does  not  consist  in  its  elements  studied  apart,  but  in 
their  sum  and  consequence,  which  can  be  reduced  gen- 
erally to  moral  duress,  the  disturbance  of  the  laws  of 
offer  and  demand,  and  public  disorder.  It  is  curious 
that  among  those  who  reason  thus  is  Proudhon, 
who  affirms  that  a  union  is  an  association  for  violence 
against  social  liberty  and  is  a  violation  of  the  economic 
protection  of  the  State.  The  alleged  duress,  however, 
intended  as  a  limitation  of  another's  rights,  does  not 


TENDENCY  TO  ILLEGAL  ACTS  489 

exist,  as  there  is  nothing  forbidden  to  the  employer 
that  is  allowed  the  operatives.  Liberty  is  complete 
when  by  the  side  of  the  coalition  of  laborers  we  can  place 
that  of  the  masters.  In  this  case  we  can  see  a  true 
equality  of  rights.  To  the  other  objection  we  cannot 
say  that  free  coalition  disturbs  the  regular  flux  and  reflux, 
offer  and  demand,  for  this  is  not  true,  as  we  will  see. 
The  workmen's  leagues  operate  either  on  population  or 
capital  to  bring  about  a  raise  in  wages.  If  they  operate 
on  population  they  should  try  to  restrain  the  offer  of 
work;  but  this  is  not  practicable  without  threats,  vio- 
lence, or  fraud,  and  on  this  score  is  within  the  rigor  of  the 
law.  The  trades  unions  and  the  "Sessions  of  the  Inter- 
national" give  us  examples  of  such  excesses.  If  these 
leagues  influence  invested  capital,  which  can  be  in- 
creased without  stopping  or  retarding  the  development 
of  industry,  they  do  not  break  the  law  of  prices, 
which  tend  to  approximate  distributive  justice.  But 
the  conditions  of  the  workmen  always  affect  the  circu- 
lating capital,  promoting  an  increase  in  wages  by  the 
increased  prices  of  other  things.  In  this  case  the 
increase  of  wages  falls  upon  the  consumer  and  the  eco- 
nomic law  is  in  no  ways  broken,  because  cheapness  is 
desirable  when  it  grows  from  a  less  expenditure  of  force 
and  not  from  a  stint  of  wages.  Furthermore,  if  in  the 
determination  of  prices  there  are  other  causes,  separate 
from  the  principle  of  supply  and  demand,  a  coalition  can 
gain  control  of  them ;  an  example  of  such  causes  foreign 
to  supply  and  demand  is  custom.  We  must  note  that 
when  the  workmen's  league  does  not  gain  its  object, 
the  law  of  offer  and  demand  is  not  altered,  but  resists 
its  unreasonable  claim,  as  Del  Guidice  said  in  his  book, 
"Coalizioni  Industrial!." 

§  304.      Unions  cannot  be  Forbidden  because  of  their 
Tendency  to  Illegal  Acts.     As  to  disorder,  let  us  recog- 


490  INDUSTRIAL  PROPERTY 

nize  that  strikes  too  often  produce  fatal  consequences 
for  all,  especially  if  wide  in  extent  and  long  in 
duration.  It  is  only  necessary  to  read  the  descrip- 
tion of  some  strikes  in  England,  especially  one  of  those 
which  was  followed  by  a  "lockout,"  to  feel  a  deep 
abhorrence  of  them.  But  confessing  the  damage  de- 
rivative from  strikes,  we  must  consider  whether  a 
union  can  be  declared  illegal  on  the  single  ground  of  its 
possible  harm.  It  appears  to  us  that  the  question  when 
put  in  such  terms  is  easily  answered,  because  it  is  clear 
that  the  penalty  must  always  refer  to  a  violation  of 
law,  which  does  not  exist  in  the  workmen's  league  itself, 
as  we  have  briefly  shown.  Neither  can  we  continue  to 
call  a  strike,  unaccompanied  by  violence,  a  breach  of  the 
peace,  but  must  reserve  this  (as  the  criminal  lawyers 
teach  us)  for  threats  and  violence.  If  intimidation  ac- 
companies a  strike  and  entails  the  use  of  force  against 
those  who  will  not  strike  or  against  the  employers,  the 
criminal  law  should  be  invoked.  Every  workman  who 
is  guilty  of  fraud  should  also  be  punished.  But  to  our 
way  of  thinking  molestation  and  obstacles,  without  the 
characteristics  of  real  violence,  which  are  used  as  a  kind 
of  indirect  force,  should  not  be  punishable,  since  it  is  not 
possible  to  determine  such  facts  accurately,  and  since  it 
can  thus  render  the  freedom  of  coalition  illusory.  Penal 
action  should  always  be  taken  by  the  government  to 
avoid  a  state  of  intimidation  which  often  accompanies 
a  contest  between  manufacturers  and  their  employees, 
who  are  sure  of  impunity  from  violence  because  of  their 
great  numbers.  Law  should  also  deprive  of  legal 
effect  any  penal  clause  enacted  between  an  employer 
and  his  workmen  to  assure  the  observance  of  agree- 
ments of  a  union,  because  everybody  has  the  right 
to  leave  an  association  when  he  believes  it  contrary 
to  his  interest. 


INDUSTRIAL  JURISDICTION  491 

§  305.  Industrial  Jurisprudence.  Freedom  of  asso- 
ciation is  intimately  connected  with  industrial  juris- 
prudence. There  is  no  reason  why  employers  and 
operatives  should  not  have  their  disputes  decided 
by  technical  judges  and  not  by  the  regular  courts, 
which  are  bound  by  unavoidably  slow  rules  of  pro- 
cedure and  the  habit  of  strictly  legal  criticism.  The 
disputes  are  often  due  to  mistakes  or  momentary  exas- 
peration; whence  it  follows  that  they  can  be  amicably 
settled  by  a  committee.  It  can  constitute  a  court  of 
special  jurisdiction,  it  can  exercise  a  summary  and 
executive  jurisdiction  in  causes  which  are  brought 
before  it  by  the  consent  of  the  parties  without  affecting 
the  jurisdiction  of  the  regular  courts,  or  it  can  act 
with  only  advisory  powers,  leaving  a  right  of  appeal 
to  the  regular  judiciary. 

§  306.  Divisions  of  Industrial  Jurisdiction.  The  com- 
mittee may  be  elected  by  the  workmen  and  the 
employers,  but  it  should  be  presided  over  by  a  dis- 
interested person,  possibly  chosen  by  the  government. 
It  is  a  good  plan  to  elect  the  workmen's  representative 
by  the  employers  and  the  employers  representative 
by  the  workmen  in  order  to  establish  a  closer  relation 
between  the  two  classes.  It  is  necessary,  however, 
to  distinguish  the  character  of  the  disputes,  as  it  may 
relate  to  the  execution  of  a  contract  already  concluded 
between  the  employer  and  his  workmen,  or  to  objects 
and  conditions  of  an  economic  and  not  juristic  char- 
acter. Arbitration  and  mediation  are  more  suited  for 
the  settlement  of  the  former  than  the  latter.  A  judgment 
is  always  unfair  and  tyrannical  which,  with  juris- 
diction only  over  a  particular  subject-matter,  im- 
poses general  conditions  which  demand  the  fullest 
knowledge  of  the  circumstances.  The  principle  of  liberty 
of  work  and  capital  is  fundamentally  denied  by  this 


492  INDUSTRIAL  PROPERTY 

kind  of  judgment,  which  is  equivalent  to  the  legal  deter- 
mination of  prices,  wages,  and  interests,  and  suffers  from 
the  same  defects.  Industrial  arbitration  will  undergo 
a  large  development  in  the  future  if  approved  by  the 
larger  associations  of  workmen,  and  recognized  by  the 
statutes.  In  this  case  the  committee  has  great  authority, 
because  their  office  of  settling  controversies  of  an  economic 
nature  is  the  effect  of  common  confidence  and  trust.  Here 
is  the  substantial  difference  between  the  "Prudhommes" 
of  France,  who  conciliate  and  define  particular  con- 
troversies, and  the  English  Courts  of  Chancery,  that 
conciliate  and  define  questions  of  common  interest. 

§  307.  Profit  is  Like  Rent.  Profit  is  the  remunera- 
tion of  capital  as  wages  are  the  compensation  of 
mechanical  labor.  Profit  is  the  part  which  belongs  to 
him  who  invests  in  an  industry,  carried  on  at  his  risk, 
a  capital  that  is  his  or  that  he  has  borrowed.  It  is 
the  rent  of  the  capitalistic  employer.  Wages  and 
interest  are  determined  by  precedent  agreements;  not 
so  the  profit.  Workmen  and  lenders  of  the  money  can- 
not be  forced  to  make  restitution  of  their  wages  or 
interest.  An  employer,  when  the  undertaking  fails, 
cannot  break  his  contracts  with  third  parties,  alleging 
a  right  to  remuneration  for  his  capital.  Profit  is  also 
a  property  because  it  is  the  price  of  the  work  of  him 
who  founds  and  directs  a  business.  It  pays  him  for  the 
sacrifice  of  his  savings  and  is  a  compensation  for  his 
risk.  In  it  we  find  the  effect  of  the  action  of  the  person 
over  animated  things,  by  which  ownership  is  created. 
Profit  is  current  or  average.  The  first  is  determined 
by  the  laws  of  supply  and  demand  of  the  capitalistic 
employers;  the  second  is  the  sufficient  payment  for  the 
labor  and  risks  of  those  who  have  rendered  the  carrying  on 
of  the  industry  possible  by  the  investment  of  their  money. 
Interest  and  profit  are  justified  by  the  principle  of  social 


PROFIT  LIKE  RENT  493 

utility.  Rae  says  that  interest  is  just  because  capital  is 
socially  useful  and  because  the  owner  of  capital  in  apply- 
ing it  to  productive  purposes  renders  society  a  service, 
the  value  of  which  is  measurable  by  its  social  utility.  The 
service  which  the  capitalist  renders  to  production  is  as 
indispensable  as  that  rendered  by  the  workmen;  the 
justice  of  interest  is  based  on  the  solid  foundation  on 
which  the  justice  of  wages  is  based.  Workmen  cannot 
produce  by  labor  alone  without  materials  and  instruments 
precisely  as  the  capitalist  cannot  produce  without  labor. 
And  capitalists  have  need  of  a  recompense  which  will 
induce  them  to  save  precisely  as  workmen  have  need 
of  it  in  order  to  come  to  a  resolution  to  work.  The 
employer  exercises  a  social  function  inasmuch  as  he 
unites  and  directs  the  elements  of  production,  thereby 
satisfying  the  needs  of  the  consumer.  He  offers  means 
for  work,  he  creates  relations  with  foreign  countries, 
he  foresees  all  the  events  which  can  occur  to  hinder 
production,  and  he  provides  for  them  in  time.  His 
services  to  society  are  invaluable.  What  could  the 
State  do  in  his  place?  In  public  administration  the 
spirit  of  enterprise  and  the  keen  interest  to  economize 
are  lacking.  Capitalists  are  more  adventurous  and  more 
economic  directors  than  public  officials.  With  public 
control  the  numbers  of  parasites  and  intermediary  agents 
against  whom  the  socialists  fight  would  be  manifoldly 
increased.  The  production  would  be  less  and  slower, 
the  saving  would  greatly  diminish,  because  no  one 
•makes  self-sacrifices  on  another's  behalf. 

§  308.  The  Socialists  and  Private  Property.  Modern 
socialists  attack  private  property  in  capital  vigorously 
and  think  its  profits  criminal  and  unjust.  Among 
them  Marx  distinguishes  himself  particularly,  because 
he  has  made  the  most  powerful  and  coherent  criticism 
of  capital.  Lassalle  differs  from  Marx  in  his  economic 


494  INDUSTRIAL  PROPERTY 

principles,  considering  the  question  as  it  concerns  the 
conditions  in  Germany,  while  Marx  treats  the  dis- 
cussion from  a  higher,  that  is,  from  an  international 
point  of  view.  Marx  and  Lassalle  differ  greatly  from 
the  French  socialists,  for  example,  Proudhon  and  Blanc, 
not  falling  into  those  superficial  abstract  theories  of 
imaginary  idealism  so  slightly  reinforced  by  scientific 
discovery.  German  socialism  is  eminently  logical,  based 
upon  the  latest  analysis  of  facts  and  doctrine,  and  armed 
by  all  the  means  of  erudition  and  modern  science.  Marx 
belongs  to  the  Hegelian  Left  and  follows  Feuerbach, 
who  transforms  absolute  idealism  into  humanism, 
eliminating  every  transcendental  principle  and  all  the 
fantastic  projections  of  the  human  essence.  The  human- 
ism of  Feuerbach  is  materialistic  because  man,  who  is 
the  beginning  of  everything,  is  nothing  in  his  essence  but 
body.  Principles  are  gods  and  must  follow  man's  des- 
tiny, allowing  him  absolute  freedom,  since  they  are  his 
creations.  The  dissolution  of  theology  into  anthro- 
pology is  united  in  the  sphere  of  thought  with  the 
transformation  of  monarchy  into  democracy  in  the 
field  of  politics.  The  State  should  be  humanized;  it 
is  a  means  for  the  well-being  of  everyone.  There  is 
nothing  above  man,  neither  superhuman  beings  nor 
consecrated  persons,  nor  is  there  a  person  who  is  more 
than  man  or  one  who  is  less.  Humanism  cannot  lend 
itself  to  collectivism  because  only  social  man  is  the 
true  human  essence,  and  the  individual  must  bow  before 
him,  as  Rae  notes.  Marx  regards  humanism  as  the  be^ 
ginning  of  the  political  and  industrial  reorganization 
which  will  be  attained  when  the  universal  proletariat 
becomes  an  irresistible  force.  Lassalle,  too,  is  Hegelian, 
and  is  disposed  like  Marx  to  recognize  the  law  of  natural 
historical  evolution  of  which  the  French  Utopists  have 
not  the  slightest  notion. 


THEORY  OF  SOCIALISM  495 

§309.  The  Old  Theory  of  Socialism.  The  theory 
of  Marx,  with  which  we  are  now  concerned,  is  closely 
connected  with  collectivism  and  mutualism.  The  col- 
lectivists  and  mutualists  say  that  in  the  same  manner 
as  in  the  natural  world  inorganic  matter  (mechani- 
cal, physical,  or  chemical)  is  the  determinate  base 
of  organic  matter  (vegetable,  animal,  or  cerebral),  so  in 
the  social  world  which  used  to  be  regarded  as  the  last 
cognitive  step  of  the  material  world,  the  development  of 
economic  questions  has  always  been  and  continues  to 
be  a  determinate  base  for  all  systems  of  philosophy, 
religion,  sociology,  and  politics.  According  to  them, 
society  to-day  is  divided  into  two  classes:  the  one  is  that 
of  the  oppressors,  who  live  like  Sybarites,  having  rights 
and  not  duties;  the  other  is  formed  of  the  oppressed,  of 
the  miserable  proletariat,  destined  to  constant  labor 
without  recompense  or  legitimate  hope  of  it,  surrounded 
only  by  restraints,  called,  for  politeness,  duties.  The 
revolutions  of  a  century  ago  have  substituted  the  power 
of  gold  for  the  power  of  chivalry,  and  for  the  old  feudal 
aristocracy  the  new,  but  not  less  iniquitous  oppression 
of  the  middle  class.  We  must  destroy  the  tyranny  of 
capital  and  guarantee  the  triumph  of  labor,  an  end  un- 
obtainable without  the  universal  union  of  agricultural 
and  industrial  associations,  which  union  will  undertake 
to  fight  the  existing  slavery,  whose  stronghold  is  matri- 
mony and  law.  It  will  proclaim  anarchy  and  recon- 
struct the  society  on  two  new  foundations,  —  collective 
property  in  the  instruments  of  labor,  and  the  absolute 
and  general  equivalence  of  functions.  Arable  land, 
forests,  quarries,  mines,  canals,  ships,  railroads,  tele- 
graphs, factories,  and  mills  will  be  subject  to  a  collective 
control  because  instruments  of  economic  activity.  The 
equivalence  of  functions  will  be  brought  into  existence 
with  the  exchange  of  the  products  regulated  by  the  cost 


496  INDUSTRIAL  PROPERTY 

and  the  value  of  the  material  needed  for  their  produc- 
tion, because  services,  being  equivalent,  must  necessarily 
be  gratuitous.  There  will  be  no  difference  in  profit 
between  one  producer  and  another,  and  the  principle 
of  one  for  all  and  all  for  one  will  be  the  rule.  But  in 
order  to  attain  the  accomplishment  of  the  social  liqui- 
dation there  will  have  to  be  many  unions  and  grave  and 
extensive  strikes  over  the  abolition  of  national  character, 
which  will  lead  to  the  universal  unity  of  workmen.  On 
the  other  hand,  obligatory  free  education,  complete  and 
common  for  both  sexes,  is  intended  to. promote  the 
equality  of  nature  between  individuals.  Such  was  the 
program  of  the  socialist  of  a  year  or  so  ago. 

§  310.  The  Socialists  Theory  of  To-day.  Schaffle,  in 
a  book  of  to-day,  "Die  Quintessenz  der  Socialmus," 
shows  the  secondary  differences  between  school  and 
school  and  party  and  party.  Everyone  knows  that 
in  the  bosom  of  socialism  itself  there  are  discordant 
varieties  as  in  every  other  system.  The  object  of 
the  whole  socialistic  movement  is  the  fundamental 
transformation  of  the  actual  social  economy.  The 
mother  idea  is  collective  property  in  place  of  private 
property  in  all  means  of  production;  that  is,  farms, 
forests,  factories,  and  mills.  The  other  principal  ob- 
jects are  the  social  organization  of  labor  in  place  of  the 
capitalistic  community,  the  creation  of  corporate  or- 
ganism -and  a  social  direction  of  production,  the  public 
division  of  common  labor  on  the  base  of  collective  prop- 
erty in  the  materials  of  social  work,  a  redivision  of 
products  of  every  kind  among  the  laborers  with  regard 
to  the  quantity  and  value  of  each  one's  activity. 
According  to  this  idealistic  theory,  the  producers  would 
be  laborers  and  not  capitalists,  because  the  capital 
would  become  collective  and  the  producers  would  work 
using  the  means  belonging  to  society,  and  there  would 


KARL  MARX  497 

be  no  more  employers  and  employees,  but  rather  pro- 
fessional workers  with  equal  duties  towards  society, 
their  paymaster.  In  consequence,  there  would  be  no 
more  private  income  in  the  form  of  surplus  values,  but 
instead  remunerations  due  exclusively  to  labor  measured 
by  quantity  and  quality.  Those  who  render  society 
services  of  the  greatest  utility,  such  as  judges,  those  em- 
ployed in  public  service,  professors,  artists,  and  thinkers, 
would  receive  a  part  of  the  national  production  in  pro- 
portion to  the  function  of  their  work.  The  means 
necessary  to  each  kind  of  production  would  be  deter- 
mined by  a  directive  committee.  Social  industry  would 
be  regulated  by  such  determination  of  public  organisms. 
The  occasional  decrease  or  excess  of  products  would 
demand  a  reserve  in  anticipation  thereof  or  a  deposit 
in  social  storehouses. 

§  311.  Karl  Marx.  In  his  book  "Das  Kapital," 
Marx  starts  out  with  economic  principles  of  the  most 
abstract  economists.  Galiani  said  that  work  is  the 
only  cause  which  gives  value  to  anything,  that  value 
is  measured  by  the  expenditure  of  work,  and  that 
by  its  duration  the  value  of  a  product  is  equal  to 
the  food  consumed  by  the  workmen  during  the  time 
of  production.  Beccaria  says  that  value  is  meas- 
ured by  work.  Later  Adam  Smith  and  Ricardo  ad- 
mitted that  the  sole  source  and  measure  of  value  is 
work.  Locke  and  almost  all  the  economists  have  placed 
the  origin  of  property  in  labor.  Bastiat  shows  that 
service  is  interchangeable  with  service.  Now  Marx  pre- 
supposes all  these  conceptions  of  the  orthodox  economic 
school  as  undeniably  true,  and  sees  the  consequences 
with  the  greatest  logic.  The  fundamental  postulate 
on  which  his  system  is  based  is:  In  every  sale  there  is 
a  value  of  use  and  exchange.  The  value  of  use  regards 
the  needs  which  the  product  is  destined  to  satisfy;  the 


498  INDUSTRIAL  PROPERTY 

value  of  exchange  corresponds  to  the  interchange  of 
products,  to  their  power  of  acquisition.  In  primitive 
society  the  value  of  use  prevails;  in  a  society  which  has 
advanced  to  the  basis  of  a  division  of  labor  the  value 
of  exchange  predominates.  Labor  creates  the  value  of 
exchange,  which,  however,  contains  also  some  value 
of  use.  The  labor  or  use  of  human  force,  which  accom- 
panies the  consumption  of  nervous,  muscular,  and  cere- 
bral substance,  is  what  is  common  to  all  value,  and  is 
the  measure  of  value  of  exchange.  Labor,  the  creator  of 
value,  is  what  is  socially  necessary  and  what  society 
must  pay  for.  With  such  notions  Marx  carries  out  the 
theories  of  Adam  Smith  and  Ricardo.  If  the  steam 
spinning  jenny  produces  in  the  same  number  of  hours 
thirty  times  as  much  silk  as  a  weaver,  he  must  work  a 
month  to  make  the  silk  which  will  only  have  the  value 
of  one  day's  labor.  Labor  is  measured  easily  in  terms 
of  labor  by  its  length,  and  therefore  if  the  space  of 
time  is  equal  in  two  occupations  it  should  have  an  equal 
reward.  But  to  whom  by  right  does  this  value  of 
exchange  belong?  He  who  produces  and  sells  wants 
his  recompense.  He  claims  that  by  his  industry  he  has 
created  a  real  excess  of  value.  The  real  excess  of  value 
is  the  effect  of  labor  for  it  has  the  virtue  of  creating  a 
value  of  exchange  greater  than  the  object  alone  has. 
Capital  does  not  create  value;  the  factory  reproduces 
the  value  it  destroys;  a  machine  produces  no  value,  but 
transmits  its  own  by  labor  to  objects  which  it  makes. 
If  there  was  not  a  real  excess  of  value  generated  by  labor 
no  one  would  take  the  trouble  to  work.  But  that  which 
for  the  independent  workmen  is  a  constant  source  of 
new  value  gives  no  reward  to  the  wage-earner.  His 
property  in  his  labor  is  stolen  from  him.  The  capitalist 
makes  his  value  out  of  his  employees,  paying  for  the 
labor  the  simple  expenses  of  production,  which  are  less 


DIFFERENT  CLASSES  499 

than  its  utility.  The  capitalist  gives  the  workmen  the 
price  of  their  useful  forces,  whose  value  is  determined 
by  its  intensity  and  function  and  is  equal  to  the  cost 
of  the  food  necessary  for  the  life  of  the  laborers  and 
their  families,  and  he  takes  all  the  surplus  value.  He 
gains  six  hours  out  of  the  twelve  hours  of  the  work- 
men's labor,  for  they  should  work  only  six  hours  to  earn 
wages  sufficient  for  their  support.  The  workmen  sell 
their  energy  for  a  Mexican  dollar  in  order  to  produce 
a  continuous  work  of  six  hours,  and  for  such  a  price 
give  labor  for  twelve  hours.  In  this  lies  the  secret  of 
the  extraordinary  increase  in  capital,  with  the  injustice 
and  tyranny  from  which  society  cannot  escape  except 
by  the  abolition  of  private  property  and  the  creation 
of  a  collectivism,  based  on  the  division  of  labor. 

§  312.  Communism  is  a  Mark  of  the  Existence  of 
Extremely  Different  Classes.  Communism  and  socialism 
are  always  born  from  the  appearance  of  extreme 
opulence  and  poverty,  from  the  failure  of  a  large  middle 
class,  from  the  wide  gulf  between  capital  and  labor,  by 
which  it  appears  easy  to  get  rich  in  inverse  ratio  to 
personal  merit,  from  the  alteration  in  feelings  of  justice 
caused  by  continual  revolutions,  and  from  the  claims 
of  lower  classes  aroused  by  democratic  constitutions. 
Roscher,  in  "System  der  Finanzwissenschaft,"  shows 
that  the  prevalence  of  communism  and  socialism  in 
the  times  of  Greek  decadence,  of  corruption  in  the 
Roman  Republic  in  the  periods  of  reform,  and  even 
to-day,  is  the  result  of  such  conditions.  It  is  necessary, 
therefore,  to  scan  closely  the  particular  characters  of 
the  Utopias  of  our  times,  to  reflect  on  the  great  knowl- 
edge of  rights  attained  by  an  incomplete  study  and  on 
the  rapidity  of  propaganda  to-day.  And,  on  the  other 
hand,  we  must  also  remember  that  the  forbidden  and 
tyrannical  guilds  have  not  separated  the  interest  of  the 


500  INDUSTRIAL  PROPERTY 

worker  from  that  of  the  employer,  however  much  they 
have  been  the  cause  of  the  infinite  evils  of  to-day  and 
the  slowness  of  the  development  of  trade.  Here  labor 
has  prevailed,  depending  more  upon  the  excellence  of 
the  art  than  on  fortune,  being  advanced  from  disciple 
to  the  grade  of  master.  A  corporation  given  a  free 
foot  for  the  benefit  of  human  beings,  great  production 
results  and  two  distinct  classes  appear,  one  furnishing 
the  means  of  production,  that  is,  the  capital,  the  other 
deprived  sometimes  of  necessities  even  and  deep  in  want. 
It  is  natural  that  such  a  noticeable  difference  between 
the  two  classes  should  cause  jealousies  and  finally  bring 
about  a  reaction  more  or  less  violent.  Such  reaction 
is  the  origin  of  modern  socialism,  whose  errors  are  ex- 
plicable as  all  similar  errors  as  due  to  the  unsatisfied 
needs  of  humanity. 

§  313.  Modern  Collectivism  Considers  Economics  the 
Base  of  Civilization.  The  principle  with  which  the 
modern  collectivists  are  inspired  is  not  true  because 
they  confuse  the  conception  of  the  simple  condition  of 
development  with  the  more  complex  conception  of  a 
determinate  base  or  incentive.  Let  us  recognize  with 
Littre  and  with  the  others  that  economic  well-being 
is  the  necessary  condition  for  scientific  religious  and 
political  progress,  but  not  that  it  is  the  motive  of  such 
progress,  which  is  thought,  that  has  been  busy  in  history 
passing  from  mute  times  to  the  mythical  age,  and  from 
the  days  of  the  heroes  to  the  time  in  which  the  mind 
considers  everything  for  itself.  Certainly  the  stomach 
is  an  indispensable  organ,  a  prerequisite  of  mental 
and  spiritual  feelings,  but  it  is  not  the  cause  of  the 
sublime  flights  of  genius  or  deeds  of  heroism.  That 
the  spirit  is  the  motive  power  of  the  economy  of  peoples 
and  States  is  proved  by  considering  the  influence  of 
knowledge,  faith,  and  politics  on  labor.  Science  is 


CAPITAL  AND  LABOR  501 

substituting  the  activity  of  nature  for  the  labor  of  man 
more  and  more,  and  celebrates,  therefore,  every  day 
the  discoveries  of  important  processes;  numerous 
victories  of  mind  over  matter.  Christian  faith  revealed 
the  principle  of  individual  personality  which,  together 
with  the  conception  of  society,  is  clearly  the  foundation 
of  economic  science.  Now  there  is  no  doubt  that  for 
the  greater  number  of  collectivists  and  socialists,  if  not 
for  all  of  them  (for  there  are  some  of 'them  Christians), 
Buddhism,  in  which  every  activity  is  absorbed  and 
everyone  is  annulled,  should  be  placed  before  Chris- 
tianity. Did  not  the  celebrated  Bakunim  in  his  letter 
written  to  Massini  at  the  instigation  of  the  Central 
Committee  of  London  say,  accepting  the  accusation  of 
atheism  and  materialism,  that  we  are  poor  individuals 
who,  like  waves,  rise  to  be  quickly  scattered  in  the 
immense  ocean  of  collective  life?  Finally  we  must 
reflect  that  political  liberty,  taking  root  in  the  customs 
of  a  people  and  extending  its  sphere,  cannot  fail  to 
generate  economic  liberty,  although  the  development  of 
one  is  not  contemporaneous  with  that  of  the  other,  as 
we  have  seen  by  the  recent  experiences  of  the  American 
and  French  laws.  We  must  remember  that  America, 
which  has  a  democratic  form  of  government,  has  adopted 
protection  in  foreign  commerce,  and  that  France  of 
the  Second  Empire,  if  it  was  liberal  in  commerce,  was 
autocratic  in  politics. 

§  314.  Capital  and  Labor  are  Not  Fundamentally 
Antagonistic.  The  war  to  the  knife  begun  against 
capital  in  the  name  of  the  disinherited  cause  of  labor 
is  absurd,  because  originally  capital  and  labor  were 
one.  And  it  is  obvious  that  with  the  multiplication 
of  capital,  labor  is  increased,  and  with  the  diminution 
of  the  former  the  latter  is  destroyed.  On  the  other 
hand  the  grave  evil  produced  by  the  present  system 


502  INDUSTRIAL  PROPERTY 

of  the  distribution  of  wealth,  by  which  the  employers 
grow  richer  and  richer  while  the  workmen  continue  to 
live  in  poverty,  can  be  eliminated  by  the  diffusion  of 
the  capital  and  property.  Let  this  be  made  in  such 
a  way  that  the  workmen  be  trained  to  become  pos- 
sessors of  the  capital,  and  the  question  of  pauperism 
will  have  begun  its  journey  towards  a  distant  solution. 
The  cooperative  method  aims  at  this  purpose  in  various 
ways  but  within  clear  limits,  and  is  animadverted  against 
by  the  collectivists,  who  say  that  cooperation  is  the 
mother  of  petty  tyrannies  and  false  sympathies,  and  is 
worse  than  the  present  capitalism.  Cooperation,  they 
say,  creates  a  new  class  with  one  foot  in  the  camp  of 
the  middle  class  and  the  other  in  that  of  the  proletariat. 
But  the  cooperative  system  in  industrial  enterprises 
has  not  had  a  fair  trial.  There  are  certainly  great 
benefits  to  be  drawn  from  the  system  of  participa- 
tion, —  a  system  which  is  still  in  its  infancy.  There  are 
methods  of  making  the  acquisition  of  property  easy,  to 
which  one  must  add  those  which  increase  the  opportunity 
of  industrial  investments  for  the  working  classes,  through 
facilities,  means  of  credit,  saving,  and  insurance  suited 
to  their  means.  The  advantages  of  a  larger  extension  of 
the  sane  and  efficacious  incorporation  of  unions  or  helping 
societies,  with  the  object  of  disproving  the  statement 
that  the  workman,  if  he  does  not  wish  to  starve,  is  always 
obliged  to  yield  to  the  demands  of  the  employer,  are  too 
important  to  be  denied.  The  sums  deposited  in  saving 
funds,  collected  by  unions,  and  wasted  for  drink  and  in 
poor  domestic  economy  show  that  not  a  few  workmen 
possess  the  means  with  which  to  begin  their  own  emanci- 
pation, if  a  good  opportunity  were  offered  them  of  using 
their  money  to  advantage  in  productive  enterprises,  as 
Rae  points  out.  There  is,  too,  the  experiment  of  reform 
by  wise  social  legislation  which  makes  for  the  improve- 


PRESENT  SYSTEM  503 

ment  and  emancipation  of  the  lower  classes.  These 
reforms  reduce  the  cost  of  living  and  look  to  the 
increase  of  productive  capacity,  the  conservation  of  the 
workmen's  physical  forces,  and  to  fosteringsuch  foresight 
as  is  possible  in  these  classes.  They  are  based  always  on 
the  principle  that  the  State's  mission  is  to  complete, 
aid,  and  save  the  deficient  activity  of  the  individual 
without,  however,  substituting  its  initiative  for  theirs. 
Its  duty  is  always  to  guard  the  liberty  of  the  weak.  The 
crises  and  vicissitudes  of  labor  can  be  foreseen  by  a 
good  system  of  insurance  which  is  also  the  subject  of 
social  legislation. 

§  315.  Present  System  is  Not  so  Black  as  it  is  Painted. 
The  socialists  exaggerate  the  evils  of  the  present  indus- 
trial system  when  they  affirm  that  it  constantly  produces 
tremendous  crises,  with  perpetual  excess  of  the  laboring 
population,  by  the  rapidity  of  technical  transformation 
and  the  headlong  changes  in  commercial  relations.  Ex- 
perience has  shown  that  machinery  has  employed  more 
hands  than  it  has  rendered  idle  and  that  with  increased 
production  the  demand  for  labor  has  increased  likewise. 
Commercial  and  financial  crises  are  more  frequent  now, 
but  on  the  other  hand  they  are  less  grave  and  violent,  espe- 
cially in  those  nations  that  en  joy  free  trade,  than  those  of 
the  past  century.  The  danger  of  rash  and  pure  specula- 
tion can  always  be  reduced  by  the  organization  of  good 
offices  of  statistics,  which  the  socialists  reasonably  and 
opportunely  demand.  The  greater  extension  of  private 
property  and  the  development  of  personal  liberty  are  the 
two  great  factors  in  modern  progress.  Nor  has  it  been 
shown  by  any  advocate  of  socialism  that  private  property 
has  not  increased  and  accelerated  production.  It  is 
impossible  to  maintain  seriously  that  the  administra- 
tion of  the  State  is  more  interested  and  acute  than  private 
enterprise  and  that  the  lessened  responsibility  of  the 


504  INDUSTRIAL  PROPERTY 

workman,  sure  of  his  position  and  future,  can  produce 
better  results.  Lassalle  declares  that  if  socialism  does 
not  increase  production  it  is  not  economically  justifi- 
able (this  is  certainly  true),  and  there  is  reason  to 
believe  that  the  nature  of  socialism  is  such  that  it 
can  ever  bring  about  the  result  desired  by  Lassalle 
and  the  economists,  who  with  one  voice  say  that  the 
preferable  system  is  that  under  which  personalty, 
realty,  and  wealth  in  general  give  the  largest  prod- 
uct and  nourish  the  greatest  number  of  men.  This 
has  always  been  one  of  private  property  which  contains 
the  most  powerful  incentive  and  gives  the  greatest 
energy  to  production.  Neither  has  it  been  shown  that 
socialism  would  be  favorable  to  the  other  factor  in  prog- 
ress, that  is,  to  the  principle  of  individual  liberty,  but 
it  has  been  proved  that  rather  the  contrary  would  result, 
should  the  socialistic  industrial  policy  become  active  and 
develop  the  authority  of  public  administration,  to  which 
the  entire  duty  of  directing  and  organizing  collective 
labor  would  be  entrusted.  Schaffle,  a  socialist,  writes 
that  the  definite  victory  or  defeat  of  socialism  depends 
upon  the  possibility  of  an  agreement  between  the  organ- 
ization of  production  and  individualistic  principles.  If 
such  an  agreement  cannot  be  made  socialism  will  be  de- 
feated. Socialism,  he  says,  will  conquer  onlybyadmitting 
that  each  individual  should  take  part  in  the  labor  for  his 
own  private  interests  as  actively  as  he  does  in  the  pres- 
ent system,  by  recognizing  that  each  man  should  suffer 
the  penalty  of  his  fault  or  neglect  and  should  be  graded  ac- 
cording to  his  merit,  and  by  directing  the  numerous  forces 
of  labor  in  such  away  as  torenderit  more  productive,  not 
by  force,  but  through  personal  interests.  Schaffle  adds 
that  he  is  convinced  that  socialism  can  so  harmonize  with 
liberty,  but  he  confesses  that  now  it  does  not  show  the  nec- 
essary guaranties  for  bringing  about  such  an  agreement. 


SOCIALISM  NOT  PROGRESS  505 

And  in  fact  it  seems  to  us  that  socialism  will  never  be 
able  to  offer  such  guaranties,  if  its  essence  is  what  Schaffle 
has  described.  How  can  socialism  ever  be  conciliated 
with  the  principle  of  personal  liberty  if  it  is  founded  on 
the  substitution  of  collective  for  private  property,  the 
organization  of  production,  the  public  division  of  labor, 
and  the  distribution  of  collective  products  of  all  kinds 
among  the  laborers?  Socialism  for  its  love  of  equality 
sacrifices  liberty,  the  source  of  difference  and  inequality. 
One  word  in  conclusion:  if  socialism  is  correctly  denned 
by  Schaffle  it  becomes  essentially  irreconcilable  with  the 
principle  of  individual  personality.  If  it  is  something 
else,  let  us  be  told  what  manner  of  thing  it  is  and  of 
what  it  consists,  and  we  will  see  how  it  can  be  in  accord 
with  this  principle. 

§  316.  Socialism  and  Progress.  Socialists  and  col- 
lectivists  base  much  on  a  vague  and  indefinite  notion 
of  progress,  which  is  motion.  Movement,  says  Galileo, 
cannot  be  without  a  substance,  without  the  inheritance 
in  its  subject,  whence  it  is  that  motion  is  always 
determined  by  the  nature  of  the  subject  moved.  With 
this  warning  it  is  clear  that  progress  cannot  be  under- 
stood except  as  regulated  by  the  things  which  progress, 
nor  can  we  grasp  an  historical  movement  of  man  which 
does  not  take  into  consideration  the  greater  senti- 
ments and  rational  impulses  of  man  which  influence 
lim.  Aristotle  stated  that  there  are  two  causes  which 
urge  men  to  desire,  — the  sense  of  ownership  and  the  feel- 
ing of  affection,  — and  that  without  property  neither  life 
nor  a  good  life  is  possible.  The  progress  of  modern  col- 

:tivists  is  of  such  a  kind,  because  it  draws  away  from 
religion  and  nationality  and  the  principle  of  individ- 
ualism which  it  considers  a  barbarous  and  egoistical 
notion.  To  deny  God  and  religion  because  the  one  is 
worshiped  and  the  other  invoked  by  the  whole  official 


506  INDUSTRIAL  PROPERTY 

world,  officers,  aristocracy,  and  all  the  privileged  classes, 
by  bondholders  and  business  men,  politicians  high  and 
low,  by  all  State  officials,  policemen,  and  street  cleaners, 
by  priests  and  clergy,  and  dissenters,  is  the  same  (Maz- 
zini  said  in  his  letter  to  the  Italians  against  the  "Interna- 
tional") as  to  deny  the  air  because  it  is  full  of  the 
deadly  germs  of  disease.  True  faith  should  not  be 
eschewed  because  much  of  the  worship  accorded  God 
is  hypocritical.  The  thought,  then,  of  substituting  a 
general  autonomy  for  the  nation  is  a  reminiscence 
of  the  infantile  life  of  the  people  who  developed  from 
a  state  of  communism  into  nations.  Eliminating 
nationality,  one  cannot  easily  reach  that  spirit  of 
general  fraternity  in  the  various  social  aggregations 
towards  which  all  projects  of  reform  are  aimed  and 
all  efforts  of  the  socialists  directed.  The  theoretical 
and  practical  mind  does  not  come  to  the  greater 
universals  except  by  passing  through  a  series  of  les- 
ser tmiversals.  Socialism,  placing  itself  in  the  sphere 
of  the  more  ample  universals  and  conquering  the  na- 
tional phase,  faces  the  fact  that  one  people  would  be  the 
owners  of  the  land  in  which  nature  has  accumulated  its 
gifts,  and  another  would  be  kept  in  barren  region.  Is 
not  land  the  common  inheritance  of  humanity?  Is  not 
occupation  as  unjust  between  one  people  and  another  as 
between  man  and  man?  Do  not  violence  and  fraud 
enter  into  the  acquisitions  by  nations  as  well  as  in  those 
of  private  persons? 

§  317.  Society  is  Not  a  Natural  Organism.  The 
conception  of  the  ethical  organism  is  in  itself  con- 
crete because  it  contains  the  social  person  or  the  whole, 
while  the  part  must  be  considered  as  a  conscious  subject. 
Such  conception  is  born  in  a  time  of  maturity  and  repre- 
sents the  harmony  between  two  opposite  elements  for 
a  long  time  in  enmity,  the  one  political,  and  the  other 


MARX'S  THEORY  507 

individual.  At  first  the  State  was  predominant  and  the 
individual  had  no  value  in  himself.  Then  he  prevailed 
and  the  State,  reduced  to  a  conventional  reality,  became 
a  simple  means  for  safeguarding  the  individual.  Now 
collectivism  and  mutualism  take  a  retrograde  step,  bring- 
ing back  the  old  pagan  idea  of  the  absorbing  community, 
the  perfect  image  of  a  natural  organism  in  which  a  part 
is  a  simple  means  having  no  individuality.  The  old  idea 
is  advanced  by  modern  socialists  clothed  in  forms  more 
industrial  than  political,  presenting  itself  to  their  eyes 
as  the  natural  distributer  of  labor,  which  innovation  is 
understood  without  difficulty  when  we  remember  that  for 
the  followers  of  the  system  in  discussion  economics  are 
the  determining  base  of  scientific,  religious,  and  political 
development.  In  such  system  the  freedom  of  the  indi- 
vidual is  conceived  of  in  an  abstract  and  general  manner, 
that  is,  without  his  natural  differences  entirely  independ- 
ent of  the  matter  to  which  it  refers.  But  freedom  so 
generalized  and  isolated  cannot  be  upheld,  cannot  fail 
to  impede  the  logical  deduction  of  the  famous  de  facto 
equality  (if  in  the  moral  sphere  surely  in  the  economic) 
of  the  absurd  collective  ownership  of  the  instruments  of 
labor  and  of  the  not  less  erroneous  absolute  and  uni- 
versal equivalence  of  functions. 

§  318.  Criticism  of  Marx's  Theory.  The  principal 
error  of  Marx  depends  upon  the  theories  of  Galiani, 
Adam  Smith,  and  Ricardo,  —  that  value  depends  only 
on  work.  Utility  is  a  factor  as  well.  To  produce 
a  given  temperature  in  winter,  we  have  to  use  more 
coal  than  in  summer,  and  if  the  quantity  of  labor 
is  the  same  in  the  two  seasons,  the  money  value  of  coal 
in  the  winter  is  higher.  In  a  day's  hunting,  says  Laveleye, 
in  his  book  "Socialisme  Contemporaine,"  the  force  and 
duration  of  the  work  are  equal  in  killing  a  doe  and  a  fox, 
but  the  first  will  furnish  nourishment  for  five  days,  while 


508  INDUSTRIAL  PROPERTY 

the  latter  will  only  be  sufficient  for  one,  whence  it  follows 
that  the  doe  with  the  greater  utility  is  worth  more  than 
the  fox.  That  utility  is  an  undeniable  element  of  value 
is  shown  in  Marx's  own  theory  of  work  socially  necessary. 
The  weaver,  for  example,  can  make  in  a  month  the  quan- 
tity of  silk  that  a  steam  weaver  makes  in  a  day.  The 
buyer  will  give  the  workman  who  has  labored  for  a  month 
the  price  which  he  would  pay  the  owner  of  the  steam 
weaver,  because  he  pays  the  laborer  not  for  the  force  used 
in  a  month,  but  for  the  service  rendered,  and  he  pays  him 
in  proportion  to  the  utility  produced.  Galiani  saw  these 
two  factors  of  value  and  calls  them  rarity  and  utility, 
meaning  by  rarity  that  which  we  moderns  call  power  of 
acquisition.  He  exaggerated  the  efficacy  of  both,  be- 
cause he  admits  value  should  develop  in  perfect  propor- 
tion with  rarity  and  utility.  Now  it  is  not  true  that  the 
price  of  products  (which  is  their  value  in  money)  increases 
step  by  step  as  the  demand  increases  (which  corresponds 
to  utility)  and  diminishes  step  by  step  as  the  off  er  increases 
(that  corresponds  to  rarity) ,  because  the  price  is  influenced 
in  various  ways  according  to  the  diversity  of  products, 
sentiments,  judgments,  desires,  and  fears.  Marx  has 
not  followed  Galiani  in  this  doctrine  but  has  accepted 
its  conceptions  in  treating  of  average  value,  reducing 
one  the  measure  of  value  of  exchange  to  labor,  and 
has  therefore  fallen  into  error.  Products  cost  not  only 
the  labor  which  is  spent  on  them,  but  also  the  conduct  of 
the  person  who  either  abstains  from  the  unproductive 
use  of  wealth  at  his  disposition,  or  deliberately  prefers 
results  more  distant  to  immediate  results.  We  have  seen 
that  the  theory  of  Galiani,  Adam  Smith,  Ricardo,  and 
Marx  cannot  be  applied  to  many  important  economic 
phenomena.  A  general  rise  of  wages  is  the  result  of  the 
value  of  the  product,  into  which  labor  enters  in  great 
proportion,  in  relation  to  capital;  in  such  a  case  there  is 


MARX'S  THEORY  509 

increase  of  value  not  preceded  by  any  augmentation  of 
the  quantity  of  labor  necessary  to  production.  If  the 
principle  of  Marx  were  true  the  products  which  demand 
a  longer  and  more  burdensome  work  would  have  the 
greater  value.  This,  however,  is  not  true  in  reality.  In 
fact  the  opposite  is  often  true.  A  porter  is  paid  less  than 
a  teacher,  and  yet  the  porter  works  a  greater  number  of 
hours  in  a  much  more  burdensome  employment.  A  min- 
ister of  state  gets  more  than  a  teacher,  and  yet  he  has  more 
time  for  preparation  and  training.  It  is  not  the  length 
of  the  work  nor  the  time  spent  in  preparation  which 
causes  the  difference  in  reward,  but  it  is  the  different  so- 
cial utility  of  the  service.  Admitting  the  principle  of 
Marx,  we  cannot  account  for  the  existence  of  industries 
in  which  there  is  a  fixed  capital.  These  should  give  a 
profit  less  than  that  of  other  industries  which  have  a  cap- 
ital made  almost  entirely  of  wages,  since  the  value  in- 
creases in  direct  ratio  to  the  quantity  of  labor  expended. 
But  experience  shows  that  this  is  not  always  true.  A  capi- 
talist does  not  give  the  workmen  all  the  value  of  the  prod- 
uct since  he  must  pay  interest  on  his  capital  and  rent  on 
his  land,  and  since  he  must  receive  a  profit  from  his  ac- 
tivity, sacrifices,  and  for  the  risks  which  he  runs.  If  the 
workmen  were  capitalists  then  things  would  go  differently 
and  there  would  be  no  reason  for  quarrels  and  lawsuits, 
but  there  has  always  been  and  there  will  continue  to  be 
a  claim  on  part  of  the  workmen's  time  in  favor  of  him 
who  gives  the  things  necessary  to  production,  because 
rent  is  natural  and  interest  is  an  indispensable  and  not 
irrational  fact.  Suppose,  says  Von  Sybel,  that  a  manu- 
facturer, during  normal  conditions  in  which  the  other 
contractors  paid  wages  of  a  dollar,  one  fine  day  paid  two 
dollars.  This,  according  to  Marx,  would  be  right,  because 
the  manufacturer  would  have  justly  paid  for  twelve  hours' 
work.  But  now  a  manufacturer  desires  to  redouble  the 


510  INDUSTRIAL  PROPERTY 

wages  because  he  has  seen  a  propitious  change  in  his  pros- 
pects and  does  not  want  to  lose  his  workmen.  In  this 
hypothesis,  if  the  possibility  comes  true,  the  manufac- 
turer would  be  enriched  not  through  the  work  of  his  men 
but  by  his  intelligence  and  the  outcome  of  events. 
Surplus  value  is  almost  a  consequence  of  such  intelli- 
gence and  of  the  variations  of  price.  Marx  is  wrong  in 
recognizing  an  excessive  and  absorbing  importance  in 
mechanical  labor,  and  in  considering  the  instrument  as 
the  motive  power  and  giving  it  the  appearance  of  a  para- 
site, while  he  himself  writes  that  the  capitalists  make 
production  possible  by  coordinating  and  directing  its 
forces.  He  falls  also  into  another  error  because  he 
believes  that  wages  are  simply  what  serves  to  keep  the 
workman  alive,  an  error  we  will  criticize  in  the  next 
paragraph. 

§  319.  Marx's  Presuppositions  are  Untrue.  The 
theory  of  Marx  is  founded  on  hypotheses  accepted 
by  his  followers  as  facts  already  demonstrated  and  about 
which  there  can  be  no  doubt,  but  these  hypotheses  are 
questionable  enough  because  they  do  not  correspond  to 
reality.  The  first  hypothesis  lies  in  considering  that  a 
day's  work  includes  twelve  hours,  while  it  appears  in  cer- 
tain recent  official  reports  that  it  is  ten  hours  and  in 
some  industries  is  restricted  to  nine  or  even  to  eight.  The 
second  hypothesis,  even  further  from  the  truth,  is  that 
a  workman  gains  always  in  six  hours'  work  enough  for 
the  support  of  himself  and  his  family.  The  third  repre- 
sents the  workman  as  resigned  not  to  gain  more  than  is 
strictly  necessary,  being  disposed  to  give  twelve  hours' 
work  to  the  contractor  who  only  pays  him  for  six.  We 
need  only  state  such  suppositions  to  see  that  they  are 
arbitrary. 

§  320.  Property  in  both  Capital  and  Labor.  From 
this  long  analysis  it  appears  that  property  in  capital 


CAPITAL  AND  LABOR  511 

and  profit  is  equally  as  legitimate  as  that  of  work  and 
its  recompense.  Property  in  capital  and  freedom  of 
association  and  industry  come  from  the  right  of  the  em- 
ployers to  unite  and  agree  among  themselves.  The  union 
of  manufacturers  not  accompanied  by  fraud,  threats,  or 
violence  is  not  criminal,  as  likewise  the  coalition  and 
strikes  of  workmen  are  legal.  In  our  day,  besides  the 
coalition  of  workmen  for  the  question  of  wages,  there  are 
associations  to  limit  production  and  keep  up  the  prices. 
Such  a  coalition  has  come  to  be  called  "kartell"  in  Ger- 
many, "cartel"  or  "syndicate"  in  France,  a  "ring"  or 
"trust"  in  England,  and  a  "pool"  or  "corner"  in  America. 
They  are  of  various  types,  depending  upon  whether  they 
regulate  the  quantity  of  production  in  a  given  time  for 
every  participant,  or  whether  they  fix  a  minimum  price  of 
a  product  to  be  observed  by  every  member  of  the  union, 
assign  a  given  radius  of  sale,  or  distribute  the  production 
among  the  members  of  the  trust  in  such  a  way  that  none 
has  a  want  or  superfluity  of  commissions.  All  these  kinds 
are  legitimate  consequences  of  the  property  in  capital 
and  of  free  association  and  they  do  not  in  the  least  pre- 
suppose fraud  or  violence.  Cannot  the  producer  of  his 
own  will  limit  his  production  and  make  agreements  with 
other  producers  about  the  price  and  place  where  he  will 
sell,  that  is,  enter  into  a  league  or  fusion  of  commercial 
societies?  There  is  here  the  exercise  of  the  right  similar 
to  that  which  the  workmen  have  to  form  their  union,  and 
the  State  cannot  fail  to  recognize  it  if  it  wishes  to  be  just 
to  all.  There  will  be  harm  done  the  consumer  in  such 
cases,  since  he  is  obliged  to  pay  more  for  his  product, 
but  he  must  remember  that  such  trusts  prevent  the  ruin 
of  important  national  industries,  and  that  therefore 
they  are  helpful  to  the  workmen.  If  the  workman  as  a 
consumer  loses  to  a  certain  extent,  he  gains  as  a  producer. 


512  COMMERCIAL  PROPERTY 


CHAPTER  IX 

COMMERCIAL  PROPERTY.— THE  RIGHT  OF 
AN  AUTHOR  OR  INVENTOR 

THE  CONCEPTION  OF  COMMERCIAL  PROPERTY.  —  FREEDOM  OF 
EXCHANGE.  —  COMPETITION.  —  PRIMITIVE  NOTION  OF  TRADE.— 
THE  RIGHT  OF  THE  AUTHOR  BEFORE  AND  AFTER  THE  INVEN- 
TION OF  PRINTING:  ITS  BASIS  AND  ITS  CHARACTER.  — THE 
RIGHT  OF  THE  INVENTOR. 

§321.  Definition  of  Commercial  Property.  Commer- 
cial property  is  the  child  of  commercial  industry.  It 
is  of  its  nature  a  go-between,  because  with  trade,  ex- 
change, and  transportation,  it  makes  the  relations 
easy  between  producers  and  consumers,  based  on  their 
purpose  of  money-making  and  their  chances  of  gain 
and  risk  of  loss.  Commerce  is  domestic  and  foreign, 
depending  upon  whether  it  is  complete  within  a  country 
or  not.  It  is  distributive  as  far  as  it  consists  in  the 
purchase  and  sale,  wholesale  or  retail,  of  things  acquired 
for  sale.  It  concerns  transportation  and  storage  if  it 
brings  to  the  consumers  of  one  place  the  products  of 
distant  countries  or  saves  for  days  of  want  objects 
bought  in  times  of  abundance.  It  includes  all  alienable 
goods  of  any  kind  which  are  material  for  commercial 
speculation.  In  this  category  are  all  forms  of  personalty, 
chattels,  money  and  checks,  and  other  incorporeal  things 
such  as  the  credit  and  the  good-will  of  a  business.  Realty 
also  can  be  included  if  it  is  an  object  of  speculation.  In 
all  cases,  the  goods  by  becoming  commercial,  acquire 
a  new  value,  which  must  belong  to  him  who  adds  his 


FREEDOM  OF  TRADE  513 

labor  to  that  of  the  producer  and  to  him  who  invests  and 
risks  his  capital.  Commerce  frees  the  producer  and 
consumer  of  the  work  of  coming  directly  together.  It 
saves  them  no  little  loss  of  time,  anticipates  capital, 
provides  transportation,  preserves  the  products,  runs 
the  risk  of  not  selling,  for  one  cause  or  another,  and  acts 
as  intermediary.  Commercial  property,  therefore,  is  justi- 
fied by  the  same  principle  of  personality  which  is  the 
foundation  of  all  kinds  of  ownership. 

§  322.  Freedom  of  Trade.  Admit  the  right  of  prop- 
erty and  the  freedom  of  labor,  and  the  logical  conse- 
quence is  freedom  of  trade  or  competition.  Clearly 
the  owner  of  anything  has  the  right  to  exchange  and 
re-exchange  it  as  best  he  can  so  long  as  he  has  full 
control  over  it.  If  an  individual  can  choose  his  trade 
or  profession  and  exercise  one  or  more,  work  with  whom 
he  pleases,  how  he  pleases,  and  when  it  seems  best 
to  him,  others  are  surely  free  to  follow  identical  lines 
and  compete.  Romagnosi  is  right  in  saying  that 
exchange  is  an  undeniable  principle  of  private  and 
public  law;  that  this  is  a  principle  of  private  law  is 
without  question.  It  is  thus  placed  with  the  right  of 
property  and  shows  in  a  very  clear  manner  as  its  logical 
effect.  Turgot,  before  Romagnosi,  discovered  and 
stated  this  truth.  Free  trade  is  a  principle  of  modern 
public  law  because  it  is  founded  on  the  territorial  divi- 
sion of  labor  among  the  nations,  avoiding  the  wasting 
of  their  productive  forces.  It  is  the  cause  of  an  increase 
and  perfection  of  products,  whose  price  it  lowers.  It 
encourages  competition,  increases  knowledge,  multi- 
plies the  relations  between  men,  makes  the  more  distant 
interests  safe,  and  is  a  sign  of  peace  and  brotherhood. 
It  is  necessary,  however,  not  to  stop  with  such  abstract 
considerations ;  we  must  study  it  concretely.  The  pure, 
extreme  theory  of  free  trade  is  set  forth  in  the  manuals 


514  COMMERCIAL  PROPERTY 

of  political  economy  and  is  not  listened  to  by  new  writers 
because  it  supposes  as  true  in  fact  two  conceptions 
which  are  not  always  so,  and  confuses  simple  abstract 
tendencies  with  reality.  This  theory  starts  out  with  two 
premises,  —  the  unity  and  cosmopolitanism  of  merchan- 
dise, without  keeping  in  mind  the  events  which  can  affect 
the  simple  elements  which  compete  in  the  world's  com- 
merce, and  the  hypothesis  that  the  workmen  are  the 
owners.  Universal  welfare  can  sometimes  be  obtained 
with  the  ruin  of  one  or  more  nations,  but  these  nations 
have  the  right  and  duty  of  providing  for  their  own  safety, 
especially  if  they  have  in  themselves  initial  conditions 
for  the  favorable  development  of  some  industries  which 
could  destroy  foreign  competition.  On  the  other  hand, 
if  free  trade  helps  the  workers  in  their  character  of 
consumers  it  can  harm  them  deeply  as  workmen.  The 
loss  will  be  felt  by  them  in  a  noticeable  manner  because 
ordinarily  they  are  not  owners  and  do  not  enjoy  the 
advantage  of  free  trade  in  proportion  to  the  damage, 
which  can,  in  certain  cases,  be  done  to  them  by  its 
adoption.  We  must,  therefore,  temper  this  principle 
with  the  particular  condition  of  the  national  industry, 
and  proceed  slowly.  Commercial  treaties,  easily  re- 
voked, better  than  general  tariffs,  make  for  the  estab- 
lishment of  control  and  the  gradual  adoption  of  the 
principle,  leaving  to  consular  conventions  the  care  of 
realizing  the  freedom  of  commerce  in  respect  to  the 
exercise  of  an  industry,  profession,  or  foreign  trade. 
This  freedom  once  recognized,  it  is  clear  that  we  should 
condemn  the  old  grants  of  monopolies  to  trading  com- 
panies, the  old  regulations,  and  all  that  which  stopped 
free  circulation,  such  as  the  provincial  customhouses, 
toll-gates,  prices  fixed  by  law,  etc. 

§  323.     Right  to  Compete.    The  competition  of  an  indi- 
vidual is  always  a  right  although  it  does  harm  to  others 


HISTORY  OF  COMMERCIAL  LAW         515 

who  follow  the  same  trade.  It  is,  an  undeniable  maxim 
of  law  that  no  one  can  do  another  harm  by  exercising  his 
own  rational  or  legal  powers.  The  law  of  the  right  of 
competition,  therefore,  does  not  and  must  not  bring 
harm.  At  that  point  there  arises  a  duty  of  indemnifica- 
tion because  there  occurs  a  private  wrong  which,  under 
the  form  of  a  legal  right,  is  harmful  to  a  proprietary  in- 
terest. In  such  a  case  the  private  wrong  assumes  the 
general  name  of  unfair  competition,  as  the  lawyers 
say.  Competition  is  fair  and  recognized  if  anyone  uses 
the  legitimate  means  at  his  disposal  to  attract  a  greater 
number  of  customers.  It  becomes  unfair  if  he  resorts  to 
mislabeling  or  adulteration.  Various  are  the  ways  and 
means  of  unfair  competition.  There  is  the  public 
crying  down  through  pamphlets  and  prospectuses  of  the 
other's  goods,  the  taking  of  another's  name,  reputa- 
tion, sign,  or  trade-mark.  All  of  these  represent  per- 
suasive force  exercised  by  merchants  on  customers. 
There  are  also  cases  of  unfair  competition  by  the  breach 
of  a  contractual  relation  by  which  one  man  obligates 
himself  not  to  compete  with  another,  or  the  violation 
of  trade  secrets  obtained  by  a  workman  of  the  factory 
where  he  has  learned  them.  These  kinds  of  unfair  com- 
petition are  methods  harming  the  credit  and  reputa- 
tion, the  "achalandage"  of  the  French  and  Belgium 
writers,  which  has  great  economic  value,  and  consti- 
tutes a  true  commercial  property  in  that  it  is  alienable 
and  the  material  of  money  making.  Names,  signs, 
and  trade-marks  are  referable  to  the  "achalandage," 
representing  the  worth  of  the  manufacturer  and  mer- 
chant, and  form  a  distinct  commercial  and  industrial 
property. 

§  324.  History  of  Commercial  Law.  We  cannot 
fail  to  be  struck  with  wonder  when  we  compare 
the  modern  notion  of  commerce  and  commercial  prop- 


516  COMMERCIAL  PROPERTY 

erty  with  the  primitive  forms  outlined  by  Cognetti 
De  Martis  in  his  "Forme  Primitive  nell'  Evoluzione 
Economica."  From  the  stories  of  trustworthy  ex- 
plorers, we  find  that  there  are  savage  peoples  who 
lack  a  conception  of  exchange,  in  that  they  take 
what  is  offered  them  and  do  not  understand  that  they 
should  give  anything  in  return.  Primitive  man,  like  a 
child,  desires  everything  and  tries  to  grab  what  pleases 
him,  because  he  is  selfish  and  controlled  by  strong 
impulses.  And  it  is  only  after  a  long  period  of  de- 
velopment that  he  can  accustom  himself  to  a  system 
of  exchange.  At  the  beginning  of  such  a  system,  the 
selfishness  and  rapacity  of  the  savage  is  transformed  into 
bad  faith  and  trickery.  The  fact  that  foreign  traders  are 
considered  enemies  increases  this  bad  faith.  Exchange 
is  first  silent,  taking  place  in  neutral  land  where  the 
contractors  without  seeing  or  speaking  to  each  other 
come,  go,  place,  increase,  and  diminish  the  merchandise 
and  thus  determine  the  "  quid  pro  quo."  Then  appoint- 
ments are  made  and  continuous  and  permanent  markets 
in  which  custom  controls  are  constituted  in  neutral 
lands.  The  authority  of  the  chiefs  is  absolute  over  the 
contractors.  After  the  market  comes  the  phase  of 
peddling  merchants  and  that  of  caravans,  to  which 
succeed  naval  expeditions  and  commercial  enterprises 
such  as  were  tried  and  carried  out  by  the  Phoenicians. 
The  Greeks  and  Romans  despised  work,  which  they 
left  to  the  slaves,  believing  leisure  was  the  condition 
of  life  for  a  citizen  who  took  part  in  the  government  of 
the  Commonwealth.  The  arts  even  were  condemned  by 
Zenophon,  Plato,  Aristotle,  and  Cicero.  The  Greeks 
and  Romans  for  the  same  reason  abhorred  trade  and 
tried,  at  least  at  the  beginning,  to  withdraw  the  State 
from  the  influence  of  foreign  commerce.  This  tendency 
is  shown  by  the  habits  and  customs  predominant  in 


THE  RIGHT  OF  INVENTION  517 

primitive  times.  In  fact,  foreign  commerce  alters 
custom  and  the  law  of  the  fathers  and  influential 
men,  and  seems  to  destroy  society  from  its  very  base. 
In  those  times  commercial  law  was  not  separate  from 
the  civil.  The  ancient  civil  law,  like  the  Roman,  con- 
tained some  rules  for  commercial  affairs,  and  regulated 
commercial  property.  Then  came  the  first  primitive 
legislative  synthesis.  In  the  Middle  Ages  the  old 
statutes  were  given  new  significance  and  new  com- 
mercial forms  were  created.  For  example,  limited 
partnerships  and  cheques  were  invented,  and  bills  of 
exchange,  partnerships,  contracts,  and  the  law  of 
agency  were  enlarged  and  defined.  At  first  these 
relations,  which  later  became  statutory,  were  ruled 
by  custom.  They  were  a  subject  of  profound  study 
by  the  school  of  Strsecha,  Casaregis,  and  Anzaldo. 
Codification  made  its  first  appearance  in  France  with 
the  "Ordinance  Generale"  of  1673,  and  with  the  Marine 
Orders  of  1681.  New  commercial  codes  and  new  special 
laws,  taking  account  of  the  great  development  of  personal 
property  in  all  its  phases  and  of  the  limited  commercia- 
bility  of  realty,  extended  and  reinforced  the  protection  of 
the  property  which  was  derived  from  the  "commutatio 
mercium,"  and  were  based  on  the  conception  of  the  free- 
dom of  commercial  combination  and  exchange.  Modern 
legislation  before  the  recent  return  to  the  older  plan 
was  almost  entirely  freed  from  those  prejudices  which 
lent  weight  to  the  system  of  the  balance  of  trade, 
protection,  the  colonial  system,  the  granting  of  monopo- 
lies. There  was  a  tendency  to  become  uniform  in  com- 
mercial more  than  in  any  other  part  of  law,  because  the 
interests  of  trade  are  confused  and  interlaced  in  a 
manner  that  prohibits  the  national  factor. 

§  325.     The  Right  of  Invention  or  Discovery.     Coming 
to  the  right  of  an  author  or  inventor,  we  must  remem- 


518  COMMERCIAL  PROPERTY 

ber  first  that  before  the  invention  of  printing  an 
author  had  no  financial  interest  distinct  from  that  of 
the  owner  of  the  product,  and  therefore  there  was  no 
need  for  a  special  legal  protection,  as  Del  Giudice  says 
in  "Enciclopedia."  The  difficulties  of  the  reproduction 
of  a  manuscript  were  great,  and  the  trade  in  books  was 
small.  With  the  introduction  of  printing  reproduction 
became  easy  and  the  trade  in  books  was  greatly  in- 
creased, consequently  a  special  protection  appeared 
that  from  the  first  controlled  the  privilege  of  re-editing 
and  reprinting.  In  the  XVII I th  Century  all  privileges 
struggled  for  existence,  and  among  them  that  of  copy- 
right. As  there  are  no  particular  rules  on  this  sub- 
ject in  the  Roman  law  or  statutes,  recourse  had  to 
be  had  to  the  common  base  of  all  rights  of  property. 
The  right  of  an  author  or  inventor  is  the  right  of  liter- 
ary, artistic,  and  industrial  property;  thus  it  is  held 
in  the  works  of  philosophers, — Diderot,  Fichte,  Hegel, 
and  Schopenhauer, — and  of  the  jurists  and  by  the  French 
statutes.  Certainly,  in  books,  works  of  art,  discov- 
eries of  new  combinations  and  new  industrial  processes, 
we  must  recognize  an  element  which  is  general  and  an 
element  which  is  particular.  The  first  lies  in  the  ideas, 
in  the  truths  which  belong  to  every  man ;  every  author 
or  inventor  assimilates  thoughts  accumulated  through- 
out centuries  which  form  the  collective  patrimony 
of  the  human  mind.  The  second  consists  in  the  re- 
search and  intellectual  activity  of  him  who  makes  a 
new  elaboration  of  general  ideas,  creating  a  form  which 
before  had  no  existence.  This  form  may  be  expressed  in 
print,  in  silk,  in  marble,  in  design,  in  sound,  in  a  combina- 
tion or  process,  and  marks  the  true  boundaries  of 
the  right  of  him  who  has  devoted  his  labor  to  it.  It  is 
just  that  society  admit  and  protect  the  new  labor, 
recognizing  the  right  of  an  author  or  inventor,  but  this 


AN  ECONOMIC  RIGHT  519 

right  should  not  prejudice  the  interest  of  humanity 
because  the  more  it  progresses  the  more  the  new  ideas 
and  new  discoveries,  by  being  diffused,  become  means 
at  the  disposal  of  all  those  who  wish  to  profit  thereby. 

§  326.  Such  a  Right  is  Economic.  It  is  objected 
that  law  should  not  forcibly  create  openings  for  men 
who  try  to  sell  their  books  and  inventions  upon  con- 
ditions of  their  own.  Once  a  book  or  invention  is 
sold,  the  purchaser  has  full  right  over  it  and  the  ven- 
dor has  no  right  to  exercise  any  restraints.  But, 
upon  reflection,  such  considerations  cannot  have  much 
weight,  as  in  fact  they  are  only  weighty  with  ordi- 
nary producers  who  may  be  unfortunate  in  not  selling 
their  property,  but  who  in  such  a  case  at  least  retain 
possession  of  it.  This  is  not  true  of  authors  and  inventors 
who  can  be  dispossessed  by  the  first  printing  press  or  manu- 
factory. We  can  observe  that  in  the  industrial  products 
the  value  lies  entirely  in  the  object  made,  and  there- 
fore the  common  protection  given  to  property  is  suffi- 
cient, while  in  the  spiritual  production  the  material  is  a 
simple  sign  of  ideas  and  of  little  value,  so  that  the  pro- 
tection of  the  property  in  the  material  is  not  a  sufficient 
protection.  A  special  protection  is  needed.  Society, 
therefore,  must  assure  the  author  the  exclusive 
right  of  reproduction  and  sale  and  the  inventor  the 
exclusive  use  of  his  invention.  It  is  not  true  that 
when  one  sells  a  copy  of  a  book  the  buyer  can  re- 
print it  on  his  own  account,  because  this  would  be 
contrary  to  the  rights  of  the  author  and  would  make 
his  own  that  special  utility  of  value  which  belongs  to 
another  without  doing  anything  to  gain  it.  With 
the  purchase  of  a  book  one  acquires  no  other  right 
than  that  to  read,  study,  lend,  and  give  it  away, 
obtain  from  it  all  possible  intellectual  profit,  and  even 
burn  it  if  one  wants. 


520  COMMERCIAL  PROPERTY 

§  327.  Inventions  are  Property  Rights.  The  right 
of  an  author  or  inventor  cannot  be  strictly  a  right  of 
property  because  property  is  by  its  nature  perpetual 
and  hereditary,  while  these  rights  are  not  of  such  a 
character.  Besides,  society  cannot  consent  to  books 
and  inventions  remaining  in  the  possession  of  heirs  who 
may  be  ignorant,  selfish,  and  always  quarreling  with 
those  who  improve  the  original  work.  It  must  give 
works  of  the  intellect  free  circulation  when  the  neces- 
sary time  of  the  exclusive  right  has  passed,  during  which 
the  author  or  inventor  can  gain  sufficient  recompense 
for  his  labor.  The  conversion  of  the  right  of  an  author 
or  inventor  into  property,  on  one  hand,  causes  a  con- 
fusion accompanied  by  frequent  litigations  between  the 
inventor  and  the  man  who  has  or  thinks  he  has  improved 
a  process  or  machine,  and,  on  the  other  hand,  causes  a 
kind  of  oppression  of  humanity  by  the  selfishness  of  the 
heirs.  It  is  clearly  irrational  that  ownership  which 
effectuates  the  laws  of  well-being  (as  Vico  has  told 
us)  should  produce  disorder  and  injustice  and  render 
human  life  stationary  by  opposing  intellectual  prog- 
ress. Neither  is  the  right  of  an  author  or  inventor  to 
be  regarded  in  the  aspect  of  personal  right,  because  it 
is  at  bottom  a  direct  relation  between  a  man  and  things, 
between  the  author  or  inventor  and  the  book  or  inven- 
tion, both  products  of  individual  activity.  In  the  right 
of  an  author  or  inventor  the  personal  element  is  sub- 
ordinate to  the  economic  element,  and  this  subordina- 
tion is  the  cause  of  its  transferability  by  acts  "inter 
vivos"  or  by  will.  The  subordination  of  the  personal  to 
the  economic  element  shows  that  the  industrial  or  literary 
work  is  considered  as  an  economic  interest,  as  a  financial 
value,  and  not  as  an  important  spiritual  product  giving 
glory  and  fame.  The  right  of  an  author  or  inventor 
includes  the  profit  which  he  can  get  from  his  intellectual 


INVENTIONS  PROPERTY  RIGHTS        521 

labor  incorporated  in  a  given  form,  and  does  not  embrace 
the  incorporeal  property  which  is  represented  by  the 
reputation  of  the  author  or  discoverer  of  a  truth,  law,  or 
phenomenon,  which  is  not  guarded  by  law  and  exists 
only  in  the  opinion  of  the  erudite.  This  incorporeal 
property  can  be  the  matter  of  literary,  scientific,  and  tech- 
nical discussion,  but  is  never  the  object  of  legal  action 
except  in  the  case  of  plagiarism,  and  is  distinct  from  the 
right  of  an  author  or  inventor.  If  this  property,  purely 
moral,  is  confused  with  the  right  of  reproduction  and 
sale,  it  is  necessary  to  remember  that  it  ends  when  such 
a  right  ends,  and  therefore  needs  no  special  recognition. 
It  is  said  that  this  subordination  is  not  true  because 
the  economic  element  cannot  exist  in  scientific  and 
literary  works,  but  this  is  not  a  question  of  fact,  but 
of  right.  It  is  sufficient  that  there  be  a  possibility  of 
economic  interest  or  profit  in  order  that  the  right  of 
an  author  should  be  guarded,  and  nothing  further  is 
necessary  for  legal  recognition.  The  true  reason  of  the 
transferability  of  the  right  of  an  author  lies  in  its 
economic  and  financial  character,  because  purely  per- 
sonal rights  cannot  be  transferred.  Eliminating  the 
two  hypotheses  that  it  is  a  property  or  personal  right, 
there  still  remains  the  possibility  that  it  has  the  nature 
and  form  of  a  property  right  analogous  to  that  of  a 
usufruct.  With  the  usufruct  there  is  a  just  proportion 
between  the  merit  of  work  (into  which  not  a  few  ele- 
ments of  human  activity  enter)  and  the  recompense 
which  does  not  constitute  an  obstacle  to  the  diffusion  of 
ideas  and  the  propagation  of  the  invention.  The  usufruct 
harmonizes  equally  the  undeniable  right  of  the  author 
or  inventor  with  the  evident  needs  of  society  without 
sacrificing  one  to  the  other.  We  understand  that  it 
can  be  given  by  law  to  the  heirs  who  represent  the  per- 
sonality of  the  author  during  the  remainder  of  his 


522  COMMERCIAL  PROPERTY 

period  of  enjoyment  of  it.  But  the  usufruct,  you  say, 
supposes  property  and  cannot  pass  to  heirs.  The  reply 
is  not  difficult  since  it  is  a  property  which  is  closely 
connected  with  the  community,  and  besides,  such  a 
right  is  a  usufruct  "sui  generis,"  because  though  it  is  of 
short  duration  it  can  pass  for  a  certain  number  of  years 
to  the  heirs. 

§  328.  Patents.  Inventions  are  generally  protected 
by  patents,  an  English  institution  which  gives  an  in- 
ventor a  right  to  the  exclusive  use  of  his  discovery 
for  a  certain  number  of  years.  A  patent  ordinarily  does 
not  insure  the  reality  or  the  utility  of  the  invention, 
since  the  State  cannot  enter  into  technical  discussions, 
and  merely  guards  the  right  founded  on  the  supposed 
nature  of  the  invention.  Not  a  few  objections  are 
raised  against  this  institution;  it  is  said  that  the  patent 
harms  the  inventor  because  of  its  short  duration,  that 
it  is  a  cause  of  frequent  litigations  which  harm  all 
business,  though  ignorance  will  not  admit  it.  Without 
doubt  the  inconveniences  shown  are  true,  but  then 
there  has  not  been  found  in  industrial  law  a  better 
means  of  protecting  the  inventor's  right.  Everyone 
knows  that  there  is  good  and  bad  in  everything;  the 
object  is  to  obtain  the  predominance  of  the  former,  since 
it  is  impossible  entirely  to  eliminate  evils.  It  is  useful 
to  remember  that  the  abuse  of  patent  rights  is  one  of 
those  examples  of  unfair  competition  of  which  we  have 
spoken.1  The  rights  of  an  author  or  inventor  exclude 
by  their  very  nature  any  competition  which,  in  their 
case,  becomes  a  private  tort  or  wrong,  capable  of  a 
monetary  valuation. 
'C/.  §320  ante. 


PERSONAL  AND  PROPERTY  RIGHTS     523 

CHAPTER  X 
SUNDRY  PROPERTY  RIGHTS 

CLASSIFICATION  OF  RIGHTS  OVER  THE  PROPERTY  OF  OTHERS.— 
SERVITUDES  AND  THEIR  KINDS.  —THE  METHODS  IN  WHICH 
SERVITUDES  ARE  CREATED,  EXERCISED.  AND  EXTINGUISHED.— 
EMPHYTEUSIS.  —  THE  SUPER-SOIL.  —  PLEDGE  AND  MORTGAGE.— 
THE  CHARACTER  OF  LIENS. 

§  329.  Personal  and  Property  Rights.  Property 
rights  are  relations  direct  and  immediate  between 
persons  and  things.  They  can  be  reduced  to  two  main 
categories;  to  "plena  potestas  in  re"  and  to  "jura 
in  re  aliena."  The  rights  over  another's  property 
are  not  a  dismemberment  of  the  complex  right  of  prop- 
erty but  limitations  placed  upon  its  exercise,  because 
property  is  always  a  power  complete  and  full  over  its 
object  and  would  not  be  such  if  its  elements  could  be 
separated  from  one  another.  In  this  case  the  division 
would  not  be  a  quantitative  variation,  of  no  importance 
in  itself,  but  a  change  of  quality,  for  the  essence  of 
ownership  is  control  of  all  the  attributes.  The  "jura  in 
re  aliena"  have  their  justification  in  the  diverse  uses  and 
utilities  of  things  by  which  they  become  advantageous 
to  men  whom  they  affect,  and  although  they  are  prop- 
erty of  a  particular  individual  and  to  society  generally. 
These  rights,  inasmuch  as  they  are  direct  relations  between 
persons  and  things,  assume  logically  the  character  of  inde- 
pendent rights  of  themselves,  like  "plena  potestas,"  and 
are  very  different  from  those  limits  and  bonds  which  con- 
tractual rights  place  on  ownership.  Whoever  acquires 
right  of  this  last  kind  (for  example,  a  lease)  exercises  par- 


524  SUNDRY  PROPERTY  RIGHTS 

tial  rights  of  property  conferred  upon  him  in  the  name  of 
the  owner,  because  personal  rights  are  immediate  rela- 
tions between  one  individual  and  another.  The  difference 
can  be  explained  by  the  different  nature  of  property  and 
personal  rights  and  the  separation  of  property  rights 
from  their  subjects  by  virtue  of  which  they  stand 
alone.  In  this  way  we  can  conclude  that  the  Roman 
maxim,  "Servitus  in  faciendo  consistere  non  potest,"  is 
not  exclusively  applicable  to  servitudes  alone  but  can  be 
applied  to  any  "jus  in  re  aliena."  In  the  first  place, 
every  "jus  in  re  aliena"  subjects  another's  property  to 
the  special  and  restricted  power  of  him  who  is  the  sub- 
ject of  the  right  independently  of  any  claim  through  the 
owner.  The  latter  would  be  held  to  the"facere"  if  the 
relationship  from  which  grows  the  "jus  in  re  aliena" 
was  personal  and  did  not  refer  to  the  property  itself. 
The  "facere"  is  the  object  of  a  contract  right  but  is 
repugnant  to  a  property  right.  The  special  property 
rights  either  look  to  the  enjoyment  or  protection  of  a 
right.  Servitude,  emphyteusis,  and  the  right  to  light 
and  air  are  of  the  first  kind ;  pawn  and  mortgage  are  of 
the  second. 

§  330.  Servitudes  in  General.  A  servitude  is  the  most 
ancient  of  the  particular  property  rights.  It  was  at  one 
time  the  only  one.  It  can  be  considered  in  an  active 
or  passive  sense  as  it  tends  to  increase  or  diminish  the 
property.  In  the  active  sense,  that  is,  from  the  point 
of  view  of  the  person  or  thing  in  whose  favor  it  is 
established,  it  is  a  right  over  another's  property,  by 
virtue  of  which  the  owner  of  the  latter  is  held  bound 
in  regard  to  a  person  or  estate  to  tolerate  or  not  to 
do  that  which  as  owner  he  could  do.  In  a  passive  sense, 
that  is,  from  the  point  of  view  of  the  thing  involved, 
it  is  a  burden  imposed  on  land  to  the  advantage  of  an- 
other person  or  land.  From  this  definition  we  can  see 


PERSONAL  SERVITUDES  525 

the  first  division  of  servitude  into  personal  and  real  or 
predial,  according  to  whether  the  object  of  its  establish- 
ment is  a  person  or  a  thing.  In  respect  to  the  object,  all 
servitudes  personal  or  predial  are  essentially  real  rights 
because  they  fall  on  things  or  land,  never  on  persons. 
The  dominant  tenement  in  a  real  servitude  cannot  be 
regarded  as  a  juridical  person,  as  nothing  which  lacks 
will  can  be  the  subject  of  rights.  In  the  dominant  tene- 
ment there  is  a  right  which  can  be  exercised  by  any 
future  possessor  of  it,  but  no  subject.  Metaphor  is 
not  reality ;  the  representation  of  a  thing  is  not  its  con- 
cept. Personal  servitudes,  on  the  other  hand,  are  different 
in  many  aspects  from  the  predial.  These  do  not  suppose 
a  tenement  but  are  attached  to  a  person,  and  therefore  are 
not  perpetual  like  the  real,  whose  duration  is  the  dura- 
tion of  the  two  tenements,  and  they  can  fall  on  personal 
property  while  the  predial  can  only  fall  upon  land.  The 
usufruct  of  clothes  and  of  money  is  an  example  of  the 
personal  servitude  over  personal  property. 

§  331.  Personal  Servitudes.  The  personal  servitudes 
are  three:  usufruct,  use,  and  "habitatio."1  "Usufruc- 
tus  est  jus  alienis  rebus  utendi,  fruendi  salva  rerum 
substantial'  The  owner  of  the  usufruct  should  enjoy 
the  thing  as  a  good  father,  as  the  owner  should  enjoy 
it,  saving  his  substance  as  well  in  matter  as  form. 
The  preservation  of  one's  substance  is  not  the  same 
as  the  preservation  of  value,  because  the  termination 
of  value  does  not  touch  the  essence  but  expresses 
the  measure  of  exchange  or  the  power  of  acquisition 
of  another's  goods.  The  owner  of  a  usufruct  has  the 
right  to  the  "uti"  and  the  "frui."  He  can  make  use 
of  the  object  and  take  its  fruits  and  enjoy  them  to  the 

1  Usufruct  is  the  right  of  enjoyment  of  an  object  and  its  products. 
"Usus,"  or  user,  is  the  right  to  as  much  of  the  natural  product  of  some- 
thing as  the  user  needs  to  sustain  life.  "Habitatio"  is  the  right  to 
use  a  house  as  a  dwelling. 


526  SUNDRY  PROPERTY  RIGHTS 

full  satisfaction  of  his  personal  and  domestic  needs.  He 
has  also  the  right  of  granting  title  to  a  third  person 
both  gratuitously  and  for  a  consideration.  The  law 
establishes  between  the  owner  of  the  usufruct  and  the 
owner  of  the  object  such  relations  as  guarantee  the  lat- 
ter complete  enjoyment  during  the  usufruct  and  keep 
his  interest  from  doing  any  possible  harm  to  the  prop- 
erty and  to  the  future  enjoyment  when  the  usufruct 
will  become  one  with  the  property.  From  the  simple 
conception  of  the  usufruct  it  can  be  inferred  that  it 
could  not  strictly  be  exercised  over  destructible  objects. 
The  Roman  law  of  imperial  times  had  recourse  to  an 
analogy  and  constituted  for  such  things  a  "quasi-usus- 
fructus,"  which  was  very  similar  to  pawn  because  the 
owner  of  the  usufruct  of  perishable  objects  acquires 
property  in  them  and  has  only  the  obligation  of  the 
restoring  the  "tantundem"  at  the  end  of  the  usufruct. 
And  yet  it  cannot  be  strictly  said  that  the  "quasi-usus- 
fruct"  constitutes  a  right  of  credit  and  is  not  a  property 
right.  When  the  "quasi-ususfruct"  begins  the  "res"  is 
"aliena"  and  becomes  the  property  of  the  owner  of  the 
usufruct  through  the  exercise  of  his  right.  The  right  of 
enjoyment  of  destructible  things,  therefore,  is  not  a  mere 
right  of  credit  but  is  that  of  an  owner  by  the  "tantun- 
dem." From  the  usufruct  we  must  distinguish  the  use 
which  according  to  modern  codes  is  a  usufruct  limited 
to  the  needs  of  its  owner  and  his  family,  and  the  "habita- 
tio,"  which  is  the  use  of  a  house.  Going  back  to  the 
sources  of  Roman  law,  the  conception  of  a  use  is  given  a 
reasonable  determination  because  by  rule  it  contains  only 
the  "uti"  and  not  the  "frui."  If  the  thing  is  useful  with- 
out its  fruits,  the  owner  of  the  use  must  use  it  (as  it  is 
written  in  the  early  law)  without  appropriating  the 
fruits;  but  if  the  thing  is  not  useful  without  its  fruits,  the 
owner  of  the  use  can  gather  them  for  his  individual  and 


PREDIAL  SERVITUDES  527 

domestic  needs.  A  use  cannot  be  leased  or  sold  since  it 
might  be  changed  and  extended  to  the  harm  of  the 
owner  of  the  property. 

§  332.  Predial  Servitudes.  Predial  servitudes  (which 
are  the  primitive  forms)  were  anciently  divided  into  rural 
and  urban  because  of  the  great  difference  of  the  needs 
of  the  country  and  the  city;  consequently  there  was 
a  division  made  of  servitudes  into  those  relating  to 
fields  and  buildings.  And  we  can  say,  although  not 
a  few  servitudes  are  applicable  to  both  the  country  and 
city,  there  are  in  all  ages  servitudes  which  look  prin- 
cipally (if  not  exclusively)  to  the  needs  of  agriculture 
and  servitudes  of  a  distinctly  urban  character.  The 
rights  of  water  and  ways  are  of  the  first  kind ;  those  of 
support,  party-walls,  and  light  belong  ordinarily  to  the 
second.  The  servitudes  are  distinguished  as  positive  or 
negative  depending  upon  whether  they  are  permissive 
or  prohibitive;  as  continuous  or  discontinuous  depend- 
ing upon  whether  or  not  they  demand  in  their  exercise 
an  act  of  man ;  into  apparent  and  non-apparent  depend- 
ing upon  whether  they  can  be  seen  or  not  with  the 
eye.  This  distinction  has  no  practical  importance,  as 
we  commonly  say,  but  it  is  bound  up  with  the  principles 
of  the  methods  of  acquisition  and  exercise  of  the  servi- 
tudes, which  must  conform  to  their  nature.  A  "jus  in 
re"  is  without  doubt  classed  with  the  "dominium"  and 
"jura  in  re  aliena;"  the  "dominium"  concerns  the  "res 
corporales,"  through  the  intimate  and  individual  inter- 
penetration  of  the  "plena  potestas"  with  the  "res";  the 
"servitutes"  on  the  other  hand,  are  concerned  with  the 
"res  incorporales."  The  "possessio,"  a  relation  between 
persons  and  things,  is  logically  connected  with  the  prop- 
erty rights,  and  therefore  can  be  extended  to  the  servi- 
tudes which  are  "res  incorporales."  We  will  see  now 
the  consequences  of  this.  In  the  first  place  predial 


528  SUNDRY  PROPERTY  RIGHTS 

servitudes  can  be  derived  from  law  or  the  act  of  man. 
Law  establishes  them  for  purposes  of  public  and  pri- 
vate utility ;  the  legal  servitudes  are  increased  with  time 
through  the  evolution  of  individuals  and  society.  A 
party-wall,  according  to  the  Roman  law,  was  only 
created  by  private  contract,  but  now  it  is  brought  about 
by  statute.  The  Roman  law  allowed  a  right  of  way 
only  to  get  to  the  sepulchre  of  one's  ancestors;  modern 
law  allows  it  for  cultivation  and  the  convenient  use 
of  one's  land.  An  aqueduct  was  recognized  in  Rome 
as  a  servitude  because  of  its  necessity.  It  has  been 
introduced  in  our  times  because  the  interests  of  the 
agriculturists  and  industrialists  should  not  be  made  to 
depend  upon  the  selfishness  of  the  landowner.  The 
Roman  law  gave  the  owner  of  a  tenement  the  right  to 
dig  wells,  even  tapping  the  water  supply  of  his  neigh- 
bor, and  did  not  decree  specific  distances  between  the 
wells  of  different  owners.  Modern  law,  however, 
establishes  a  distance,  which  can  be  increased  when 
necessity  demands  it  (the  judicial  authority  fixes  the 
increase)  in  order  not  to  harm  other  land,  springs,  and 
preexisting  canals  and  aqueducts.  In  all  these  examples 
we  can  clearly  see  that  constantly  more  control  is  ex- 
ercised over  property  for  social  objects,  and  its  selfish 
use  is  forbidden  without  harm  to  its  individuality.  Still 
more  triumph  will  yet  be  accorded  those  principles  of 
economic  law,  of  which  Romagnosi  has  been  the  systemic 
standard-bearer. 

§  333.  Servitudes  Derivative  from  Acts.  The  predial 
servitudes  derivative  from  the  act  of  man,  if  continuous 
and  apparent,  can  be  acquired  with  title,  or  by  the 
designation  of  the  pater-familias,1  or  prescription;  but 
if  discontinuous  and  non-apparent,  with  title  alone.  Is 

1  Where  an  owner  of  two  farms  creates  a  servitude,  which  springs  up 
upon  alienation  to  two  different  owners,  there  is  a  "designatio." 


DERIVATIVE  FROM  ACTS  529 

this  an  arbitrary  disposition  of  positive  law  or  is  it  con- 
sonant with  rational  law?  Admitting  by  the  light  of 
reason  that  servitudes  are  capable  of  possession  (or 
"quasi-possessio,"  as  the  Roman  jurisconsults  say,)  and 
that  continued  and  uninterrupted  possession,  if  certain 
and  public,  gives  a  prescriptive  right;  we  must  conclude 
that  the  methods  of  acquisition  established  by  positive 
law  are  consequences  of  a  rational  principle.  And  in 
truth,  in  the  continuous  and  apparent  servitudes  there 
is  certain  and  public  possession,  and  therefore  the  pos- 
sibility of  acquisition  by  prescription.  The  designation 
of  a  pater-familias  presupposes  a  single  owner  of  two 
neighboring  farms  who  makes  one  subservient  to  the 
other.  Since  both  of  them  belong  to  him  there  is  no 
servitude,  but  the  servitude  springs  up  when  the  farms 
belong  to  different  men.  Only  continuous  and  apparent 
servitude  can  be  shown  by  a  "designatio"  or  result 
therefrom.  A  "designatio"  could  not  have  the  power  of 
establishing  discontinuous  and  non-apparent  servi- 
tudes. Such  servitudes  cannot  be  acquired  by  prescrip- 
tion or  by  the  designation  of  the  pater-familias,  as  they 
lack  the  requisites  of  legitimate  possession.  The 
methods  of  exercise  of  a  servitude  are  governed  in  the 
same  way  as  their  acquisition.  If  they  originated  by  a 
grant,  it  determines  their  exercise;  if  they  arise  by 
designation  or  prescription,  we  must  remember  the  state 
of  things  left  by  the  single  owner  and  have  recourse  to 
the  maxim,  "tantum  prsescriptum,  quantum  posses- 
sum."  Predial  servitudes  are  extinguished  by  merger, 
by  the  change  of  the  state  of  the  dominant  or  servient 
tenement  so  that  the  former  can  no  longer  make  use  of 
it,  by  the  renunciation  of  the  owner  of  the  dominant 
tenement,  by  the  joining  of  boundaries,  and  by  prescrip- 
tion. Prescription  cannot  bring  about  all  the  servitudes 
but  has  the  power  of  extinguishing  all  of  them,  because 


530  SUNDRY  PROPERTY  RIGHTS 

society  has  an  interest  in  the  complete  freedom  of  prop- 
erty. Property,  freed  from  burdens  and  dependent  upon 
a  single  will,  is  quicker  to  use,  and  therefore  more 
productive. 

§  334.  Servitudes  of  Constructions.  The  right  of  con- 
struction in  modern  times  cannot  be  understood  more 
accurately  or  in  a  manner  conforming  more  to  reality 
than  it  was  by  the  Romans.  According  to  the  Roman 
law,  the  rigorous  maxim,  "Superficies  cedit  solo,"  was  in 
force,  and  it  was  not  possible  to  determine  exactly  the 
right  of  construction,  which  is  really  only  shown  as 
ownership  by  the  erection  of  a  building.  The  owner 
of  such  a  right,  though  he  had  in  fact  the  rights  of 
an  owner  by  pretorian  equity,  was  not  considered  as 
such,  but  was  looked  upon  rather  as  the  subject  of 
a  "jus  in  re  aliena."  Getting  down  to  the  reality  of 
things,  whosoever  acquires  the  right  of  building  over  the 
land  of  another  does  not  wish  in  the  least  to  make  the 
owner  of  the  building  the  owner  of  the  soil.  The  latter 
is  the  owner  of  the  subsoil,  but  can  well  limit  the  exten- 
sion of  his  right  over  the  super-soil  and  allow  another  to 
build  and  be  the  owner  of  the  construction  erected  over 
land  which  continues  to  be  his.  There  is  no  legal  impos- 
sibility in  this  case  that  is  reconcilable  with  the  pre- 
sumption of  the  civil  code  that  any  building,  crop,  or 
work  over  or  above  the  soil  shall  be  regarded  as  made  by 
the  owner  at  his  expense  and  belonging  to  him  as  long  as 
the  contrary  is  not  shown  and  as  long  as  it  is  not  shown 
that  another  has  acquired  the  "jus  superficiei,"  by  paying 
the  owner  of  the  soil  for  it.  In  looking  at  the  relation 
between  the  two  owners,  there  is  no  doubt  that  the  right 
to  build  over  the  land  of  another  and  to  hold  this  right 
against  any  possessor  is  real.  It  cannot  be  a  right  of 
property  when  the  building  is  lacking,  as  Lucci  says  in 
his  book"Natura  del  Diritto  di  Superficie."  But  in  con- 


EMPHYTEUSIS  531 

sidering  the  relations  between  the  owner  of  the  building 
and  the  right,  the  right  is  proprietary  and  has  peculiar 
characteristics.  Coviello,  in  his  monograph  "Delia 
Superficie,"  notes  that  such  property  is  not  limited  by 
itself  but  by  the  object  to  which  it  is  applied.  Such  prop- 
erty in  a  building  cannot  be  confused  with  the  property  in 
a  house.  The  owner  of  a  house  or  of  any  kind  of  an  estate 
is  the  owner  of  what  is  above  it  and  below  it  as  far  as  his 
practical  interest  extends.  The  owner  of  the  right  has 
only  propertyin  the  lightand  air, — whatis "super  faciem 
soli."  We  must  understand  that  the  right  goes  with  the 
ownership  of  the  land  and  therefore  must  be  determined 
in  the  measure  given  by  a  necessity  of  having  the  con- 
struction on  the  soil  or  of  using  that  already  existing,  and 
everything  which  exceeds  this  necessity  exceeds  the  sphere 
of  rights  of  its  owner.  Also  in  the  hypothesis  of  a  tem- 
porary and  destructible  right  the  owner  of  the  right  is 
the  owner  of  any  construction.  The  buildings  of  private 
citizens  on  public  land,  by  concession  from  the  govern- 
ment, are  revocable  property,  the  land  always  remaining 
public.  Tombs  and  sepulchral  monuments  have  a  similar 
nature  but  are  constructions  belonging  to  individuals  on 
public  soil.  The  individuals  have  the  right  to  take 
away  the  statues,  demolish  the  chapels  or  monuments, 
and  put  them  in  a  new  cemetery.  The  right  of  a  rail- 
road, states  Coviello,  is  a  true  right  of  property.  The 
soil  is  public,  but  the  company  enjoys  the  exclusive 
right  of  erecting  stations,  warehouses,  houses,  depots, 
tracks,  and  all  that  constitutes  its  outfit.  The  same 
can  be  said  of  tramways,  boxes  in  theatres,  or  pews  in 
church. 

§  335.  Emphyteusis.  Besides  the  servitudes  there 
is  another  particular  property  right  giving  a  right  of 
use;  that  is  emphyteusis.  This,  with  its  many  powers, 
is  nearer  than  the  other  "jura  in  re  aliena"  to  owner- 


532  SUNDRY  PROPERTY  RIGHTS 

ship.  It  is  the  right  to  use  a  thing,  take  its  fruits, 
and  grant  it  by  will  or  deed,  but  with  the  two  obli- 
gations to  pay  the  grantor  of  the  estate  an  annual 
rent  and  not  to  let  the.  land  deteriorate.  When  the 
emphyteuta  fails  in  these  obligations  there  is  a  re- 
version of  the  estate  to  the  grantor.  The  constitution 
of  Zeno  gives  a  special  and  distinct  character  to  emphy- 
teusis,  solving  the  questions  of  whether  it  was  a  lease  or  a 
transfer  and  recognizing  the  right  derived  from  it  as  a 
"jus  in  re  aliena."  The  school  of  commentators  sees  in 
emphyteusis  a  division  of  "dominium,"  and  gives  the 
grantor  the  "directum"  and  the  grantee  the  "utile." 
Reasonably  this  division  cannot  be  admitted  because 
in  emphyteusis  there  are  two  wills,  one  of  which 
exercises  on  the  estate  an  effective  and  almost  complete 
control,  the  other  of  which  is  abstract,  more  distant 
from  the  object,  and  is  shown  only  by  the  exaction  of  a 
nominal  rent  and  by  the  reversion  upon  deterioration. 
The  first  will  is  really  that  of  an  owner  because  it  is  shown 
with  almost  complete 'powers  of  property.  The  second 
is  that  of  a  man  who  simply  has  a  right  over  something. 
The  property  of  the  grantee  is  controlled  by  his  resolu- 
tion to  fulfill  his  two  obligations ;  the  right  of  the  grantor 
is  more  of  a  right  of  credit  and  assumes  the  semblance  of 
a  real  right  "sui  generis."  In  Germany  emphyteusis  is 
considered  as  a  kind  of  divided  property;  in  France  it  was 
so  connected  with  the  feudal  system  that  the  Code  did 
not  speak  of  it.  The  Italian  Civil  Code  recognizes  it  but 
establishes  a  right  of  redemption  in  favor  of  the  grantee ; 
and  this  is  in  accord  with  economic  principles,  with 
which  emphyteusis  should  not  run  counter  because  it  is 
useful  in  those  cases  where  we  find  a  large  extent  of  un- 
cultivated land.  The  owner,  in  such  a  case,  can  get  no 
profit  from  his  estate  either  by  a  transfer  or  long  term 
lease,  but  through  emphyteusis  he  can  obtain  a  certain 


PLEDGE  AND  MORTGAGE  533 

sum  of  money  in  rent.  On  the  other  hand  the  emphyteuta 
by  careful  work  can  have  a  good  profit,  and  by  taking 
advantage  of  the  exemption  laws  acquire  definite  and 
irrevocable  property. 

§  336.  Pledge  and  Mortgage.1  Pledge  and  mortgage 
are  "jura  in  re  aliena,"  which  guarantee  a  debt.  The 
obligations  of  the  person  are  placed  upon  their  present 
and  future  chattels  because  such  are  the  projection 
of  the  person  himself.  The  goods  of  the  debtor  are 
the  common  guaranties  of  his  creditors  and  their  value 
is  divided  among  them  ratably,  unless  some  creditor 
has  a  legitimate  cause  for  preference.  In  spite  of  a 
generic  pledge,  the  debtor  can  dispose  of  his  goods  in 
whatever  way  he  wants,  but  this  right  is  limited  by  bad 
faith  and  the  consequent  removal  of  goods  in  fraud  of 
creditors.  Some  do  not  wish  to  run  any  risk,  and 
therefore  get  a  pledge  in  strict  form  by  which  the  object 
passes  into  their  hands,  but  without  becoming  part  of 
their  estate  or  object  of  their  enjoyment.  The  right  of 
the  pledgee  lies  in  the  eventual  receipt  and  appropria- 
tion of  the  value  and  price  of  the  object  pledged.  It  is 
not  a  "jus  in  re  aliena."  Differing  from  them,  it  does 
not  give  a  partial  property  over  the  object  or  any  right 
of  enjoyment.  The  creditor  cannot  dispose  of  the  pledge 
upon  failure  of  payment  without  an  order  of  court,  to 
the  appraised  value,  or  that  it  be  sold  at  auction.  A 
"pactum  commissorium,"  which  authorizes  the  creditor  to 
take  the  pledge  and  dispose  of  it  without  the  conditions 
established  by  law,  is  a  nullity  because  it  is  the  result  of 
a  dishonest  calculation  founded  on  the  stress  of  circum- 
stances and  the  illusions  of  the  debtor,  and  because  it 
changes  a  right  to  the  value  of  something  into  a  future 
right  of  property.  Atone  time  the  word  "pignus"in  Rome 

1  Mortgage  is  here  used  to  translate  the  Italian  "ipotica,"  the  civil 
"hypotheca." 


534  SUNDRY  PROPERTY  RIGHTS 

had  a  broad  signification  and  took  in  all  the  kinds  of 
securities  given  to  a  creditor,  the  pledge  of  realty  and  per- 
sonalty, antichresis,  which  gives  the  profits  of  the  pledge  in 
lieu  of  interests,  mortgage,  which  had  a  strict  and  deter- 
mined meaning  and  which  applied  to  personalty.  The 
Austrian  Code  uses  it  as  a  general  word  comprehending 
the  pledge,  properly  so  called,  and  mortgage,  and  yet  it 
distinguishes  the  two  institutions.  The  French  Code 
includes  antichresis  in  pledge,  thus  differing  from  the 
Roman  law  by  which  realty  or  personalty  could  be  given 
in  pledge  without  making  an  antichresis.  The  latter  con- 
sisted in  an  agreement  added  to  the  contract  of  pledge, 
giving  the  creditor  a  right  to  enjoy  the  property,  taking 
the  fruits  instead  of  interest.  Antichresis  was  originally 
a  reciprocal  loan  and  not  a  pledge,  and  created  no  privi- 
lege over  the  object  or  property  rights  against  third 
parties.  The  French  Code  looks  upon  antichresis  as  the 
pledge  of  realty,  but  does  not  give  the  privilege  to  the 
anticredical  creditor  and  thus  falls  into  a  clear  contra- 
diction. If  the  Roman  law  did  not  admit  this  privilege, 
it  was  consistent  because  it  did  not  include  antichresis 
in  pawn.  The  Italian  Code  shows  better  than  the 
other  codes  the  nature  of  the  three  institutions  which, 
in  truth,  are  methods  of  security,  although  not  all  of 
them  give  place  to  property  rights.  It  assigns  different 
legal  features  to  the  three  institutions  and  speaks  of 
them  separately  without  the  use  of  the  definite  article. 
§  337.  Antichresis.  Pledge  and  Mortgage.  Recording. 
Pledge  and  mortgage  are  property  right  of  guarantee, 
one  implying  the  possession  of  personalty  and  the 
other  applying  the  case  of  realty.  Antichresis  is  a 
contract  apart,  by  which  the  creditor  takes  the  fruits 
of  the  debtor's  realty,  with  the  duty  of  applying  them 
to  the  payment  of  interest  and  capital  loaned,  and  creates 
a  personal  right.  It  is  just  and  proper  to  restrict  the 


PLEDGE  AND  MORTGAGE  535 

effects  of  the  contract  of  antichresis  to  the  parties,  because 
the  law  furnishes  a  creditor  means  of  arming  himself 
against  the  bad  faith  of  a  debtor  by  the  property  right 
of  mortgage.  Social  economy  cannot  greatly  favor 
antichresis;  the  interest  of  the  creditor  is  to  get  the 
greatest  amount  of  fruit  from  the  estate  and  to  expend 
on  it  the  least  that  he  can.  It  is  enough  that  the  debtor 
gives  the  creditor  the  right  of  getting  the  fruit  without 
conferring  preferences  upon  him.  We  may  add  that 
antichresis  is  apt,  especially  if  it  is  for  a  loan  of  long  dura- 
tion, to  cover  usury  because  of  the  uncertainty  of  the 
amount  of  the  fruits,  and  the  usury  would  not  be  affected 
by  the  only  restraint  that  is  in  force  to-day,  that  is, 
publicity.  This  is  the  reason  why  both  the  canon  and 
Austrian  law  do  not  recognize  antichresis  and  the  grant- 
ing of  the  usufruct  of  a  pledged  estate.  If  the  creditor 
is  not  put  in  possession  of  the  pledge  he  will  only  have  a 
personal  action  against  the  debtor  to  obtain  it.  But  he 
will  have  no  property  right,  because  a  property  right 
supposes  a  direct  relation  between  the  person  and  thing, 
which  is  lacking  here.  Tradition  in  pledge  is  like  the 
recording  in  mortgage;  and  we  can  note  that  tradition 
can  be  actual  or  symbolic,  as  in  the  cases  of  the  pledge  of 
commercial  property.  Mortgage  is  defined  in  the 
earliest  writings,  as  it  is  denned  in  modern  law,  but  the 
Roman  system  made  almost  exclusively  for  the  interest 
of  the  mortgagee  and  had  a  particular  regard  for  the 
owner  of  the  first  mortgage,  while  the  law  of  to-day  is 
based  upon  the  two  financial  principles  of  publicity  and 
certainty.  Publicity  is  gained  by  "transcriptio"  and 
recording:  a  "transcriptio"  is  applicable  to  the  trans- 
ferable titles  of  realty  and  is  a  right  that  does  not 
destroy  or  affect  its  disposition;  recording  regards 
the  mortgage.  Recording  is  a  kind  of  public  tradi- 
tion, which  the  Romans  did  not  have  because  they 


536  SUNDRY  PROPERTY  RIGHTS 

laid  emphasis  on  physical  tradition.  Publicity,  there- 
fore, is  in  the  interest  of  the  third  parties,  who 
should  know  who  is  the  owner  of  an  estate  and  what 
encumbrances  there  are  upon  it.  Through  recording, 
third  parties  can  know  of  the  mortgages  and  can  defi- 
nitely determine  the  value  of  the  mortgaged  property. 
Certainty  has  to  do  only  with  debts,  and  is  duplicate  in 
the  sense  that  a  mortgage  can  be  certain  in  that  it 
falls  on  determinate  goods  and  is  for  a  determinate  sum. 
The  object  of  this  is  to  warn  third  parties  so  that  they 
will  not  be  misled  as  to  the  financial  condition  of  the 
debtor,  and  so  that  the  inconvenience  of  the  opposite 
system,  deplored  for  so  long  a  time,  and  so  harmful  to 
the  development  of  credit,  may  no  longer  be  possible. 
§  338.  Vessels.  The  question  has  been  raised 
whether  a  ship  can  be  pledged  or  mortgaged.1  Vari- 
ous have  been  the  opinions,  diverse  the  legal  defini- 
tions. Really,  a  ship  by  her  nature  should  be 
placed  among  personalty,  and  as  personal  have  the 
Roman  law  and  the  Italian  school  considered  her, 
unlike  some  of  the  laws  of  the  Middle  Ages.  A  ship, 
however,  is  a  kind  of  personalty  "sui  generis,"  so 
the  statutes,  realizing  her  particular  importance  and 
wishing  to  protest  and  promote  maritime  credit,  are 
forced  to  subject  her  to  the  same  conditions  as  are  nec- 
essary in  conveyances  of  realty,  to  assign  her  to  a  definite 
district,  and  to  remove  her  from  the  jurisdiction  of  per- 
sonalty and  its  maxim  that  possession  is  nine-tenths  of 
the  law.  If  a  ship  is  regarded  as  a  simple  chattel  and  can 
be  pawned,  although  remaining  in  the  control  of  the 
debtor  for  his  use,  a  formality  representing  the  transfer 
of  possession  is  necessary,  that  is,  the  appointment  of 
the  trustee ;  but  if  we  consider  a  ship  a  kind  of  personalty 
"sui  generis,"  which  must  be  considered  from  certain 

1  Cf.  §  337  ante. 


LIENS  537 

legal  points  of  view  as  realty  because  of  the  necessity  of 
not  depriving  the  debtor  of  his  possession  as  well  as  of  the 
accidental  nature  of  the  formality  of  appointing  a  trus- 
tee, it  is  more  reasonable  to  allow  a  mortgage,  as  the 
French  law  has  done. 

§  339.  Liens.  Another  method  "sui  generis"  of 
guaranteeing  credit  is  the  "jus  retentionis"  or  lien. 
This  is  the  legal  authority  given  to  the  possessor  of 
something  who  is  the  creditor  of  another  by  either 
a  property  or  personal  right,  to  continue  in  posses- 
sion of  the  debtor's  property  until  his  demand,  based 
on  the  thing  obtained,  has  been  satisfied.  There  is 
a  full  definition  given  by  Guarracino  in  his  book 
"II  Diritto  di  Ritenzione."  The  "jus  retentionis"  in 
its  strict  and  proper  sense  presupposes  a  recognition  of 
another's  right  over  the  object,  and  looks  only  to  the 
guaranteeing  of  the  payment  of  a  debt  in  its  regard,  and 
therefore  does  not  extend  to  cases  in  which  the  object 
is  kept  through  the  failure  to  satisfy  a  debt,  and  more 
particularly  to  those  cases  which  give  the  "exceptio  non 
adimpleti  contractus."  Neither  should  this  right  be 
confused  with  contractual  possession,  which  is  part  of 
pawn  or  antichresis,  for  it  can  be  established  independ- 
ently of  these  contracts.  The  "jus  retentionis"  is  a  spe- 
cial accessory  right  which  differs  fundamentally  from  all 
other  property  rights  or  obligations.  It  is  not  like  the 
"jus  in  re  aliena"  because  it  does  not  give  rise  to  any  use 
or  enjoyment,  as  the  servitudes  and  emphyteusis  do,  and 
because  the  object  on  which  it  is  exercised  and  its  price 
are  not  applied  to  the  satisfaction  of  the  debt,  as  in  pawn 
and  mortgage.  On  the  other  hand  it  is  not  a  personal 
right  because  the  creditor  does  not  claim  that  the  object 
is  owed  him  by  the  other  party,  through  a  "vinculum 
juris"  existing  between  them.  It  can  be  a  relation  of 
obligation,  Guarracino  says,  but  in  a  different  sense,  that 


538  SUNDRY  PROPERTY  RIGHTS 

is,  for  the  benefit  of  the  debtor,  since  he  can  claim  to  have 
the  assignment  or  restitution  of  the  object  by  a  personal 
right  which  is  contractual.  The  "jus  retentionis," 
admitted  more  or  less  by  all  legislation,  is  based  on  natural 
equity  which  will  not  allow  the  claim  for  assignment  to 
be  satisfied  thus  depriving  the  assignor  of  the  payment  of 
a  debt  due  in  the  same  transaction.  It  would  not  be 
right  to  alter  the  equality  between  the  parties  to  the 
possible  harm  and  no  little  trouble  of  him  who  has 
suffered  expense  for  another's  property. 


POSSESSION  IS  NOT  PROPERTY          539 


CHAPTER  XI 

POSSESSION 

THE  NATURE  OF  POSSESSION.  —  ITS  HISTORICAL  ORIGIN.  — ITS 
DEVELOPMENT  IN  LEGISLATION.  — CRITICAL  EXPOSITION  OF  THE 
DIFFERENT  ABSOLUTE  AND  RELATIVE  THEORIES.  —  ITS  RATIONAL 
BASIS.  — CRITICISM  OF  IHERING'S  THEORY  OF  THE  WILL  TO 
POSSESS.  • 

§  340.  Possession  is  not  Property.  The  "jus  possi- 
dendi"  is  one  thing,  and  the  "jus  possessionis"  another. 
The  fiist  is  the  consequence  of  a  right  of  property,  its 
more  immediate  actualization;  the  second,  distinct  and 
different  from  the  "plena  potestas,"  forms  a  separate 
and  different  institution.  In  early  law  we  find  this 
separation,  because  there  it  is  said  "separata  esse  debet 
possessio  a  proprietate"  and  "nee  possessio  et  pro- 
prietas  misceri  debent,"  since  there  was  nothing  in 
common  between  the  two  institutions:  "nihil  comune 
habet  proprietas  cum  possessione."  The  earliest  sources 
of  Roman  law  declare  that  possession  is  a  distinct  right 
and  the  material  of  a  special  institution,  when  they 
affirm,  "possessor  hoc  ipso  quod  possessor  est  plus  juris 
habet  quam  ille  qui  non  possidet." 

§  341.  Possession  is  a  Right.  The  "jus  possessionis" 
or  legal  possession,  is  a  direct  relation  between  a  person 
and  thing  and  therefore  is  a  "jus  in  re,"  a  property 
right.  But  it  is  not  like  the  other  rights,  as  Bruns  says 
in  his  work,  "Besitzklagen  des  Romischen  und  Heuti- 
gen  Rechts."  It  has  a  special  character  and  is  a  relative 
right  because  the  will  of  the  person  to  control  objects 


540  POSSESSION 

is  not  exercised  over  objects  without  an  owner  and  does 
not  become  absolute  ownership,  but  must  yield  before 
the  higher  right  when  the  latter  is  shown.  Legal  pos- 
session is  composed  of  two  elements,  —  a  chattel  with  a 
de  facto  right  over  it,  and  the  intent  of  keeping  the 
chattel  and  working  therewith.  The  phrase,  "Corporalis 
possessio  corpore  rem  attingere  corpore  in  fundo  esse," 
indicates  the  first  element.  The  phrase,  "Animus  rem 
sibi  habendi  animus  possidendi  animus  domini,"  refers 
to  the  second.  The  chattel  and  the  de  facto  power 
over  it  must  join  in  the  person  in  such  a  way  as  to  give 
rise  to  knowledge  of  the  possibility  of  enjoying  the 
thing  or  of  exercising  the  power.  This  condition, 
shown  by  Savigny  in  "Recht  des  Besitzes,"  and 
admitted  by  Bruns  and  Windscheid,  has  more  to  do  with 
the  continuation  of  possession  than  with  its  beginning, 
because  at  the  moment  of  acquisition  it  needs  a  positive 
effective  activity,  through  which  new  relation  between 
the  person  and  thing  is  brought  about.  And  in  the 
continuation  of  possession,  too,  the  knowledge  must 
not  be  confused  with  the  "vis  inertia,"  but  should 
be  practical  and  active.  It  should  appear  in  a  par- 
tial exercise  of  the  de  facto  power.  The  intention 
of  keeping  and  using  the  thing  is  a  specific  mark  of 
possession  and  is  the  concept  by  which  it  is  distinguished 
from  mere  detention.  The  detainer  has  no  intent  to 
keep  the  thing  for  himself  or  his  own  advantage;  he 
has  possession  in  the  name  of  another  and  is  not  the 
possessor,  but  the  agent,  of  him  in  whose  name  he  keeps 
it.  The  possessor  does  not  lose  his  right  of  possession 
when  he  does  not  exercise  his  power  in  a  direct  manner, 
but  through  another,  who  exercises  it  for  him  and 
in  his  name.  If  possession  is  an  immediate  relation 
between  a  person  and  thing,  it  cannot  be  extended  to 
obligations  and  family  rights  (as  Bruns  would  wish)  but 


THE  HISTORY  541 

must  be  limited  within  the  sphere  of  property  rights. 
Yet  not  all  property  rights  are  capable  of  possession,  but 
only  those  which  are  based  on  a  continuous  and  known 
use,  as  emphyteusis  and  usufruct,  the  continuous  and 
apparent  servitudes;  and  therefore  the  right  of  mortgage 
which  is  a  property  right  is  not  susceptible  of  possession, 
because  it  would  be  extinguished  by  its  use,  that  is,  by 
the  sale  of  the  land.  From  this  it  can  be  inferred  that 
possession  is  of  two  forms,  depending  upon  whether  it  is 
applicable  to  chattels  or  rights.  The  possession  of  the 
thing  corresponds  to  the  exercise  of  the  right  of  prop- 
erty; the  possession  of  a  right  corresponds  to  the  exercise 
of  a  "jus  in  re"  that  has  the  qualities  that  we  have 
shown.1  The  "quasi-possessio,"  as  Bruns  teaches,  is  a 
regular  form  of  the  simple  notion  of  possession  and  is  not 
anomalous  or  exceptional,  as  was  believed  by  Savigny, 
Thibaut  (in  his  "System  der  Pandekten"),  Windscheid, 
and  others. 

§  342.  The  History  of  Possession.  The  historical 
origin  of  possession  is  obscure  and  has  been  the  sub- 
ject of  much  controversy.  If  it  is  a  relative  property 
right,  as  we  have  said  before,2  it  cannot  arise  where 
individual  property  is  lacking.  Possession  is  a  direct 
relation  between  a  person  and  thing  and  yields  only 
in  the  face  of  a  property  right,  which  must  be  proved  in 
order  to  conquer  and  overcome  it.  The  very  notion 
of  possession  presupposes  the  existence  of  private  prop- 
erty. Filomusi-Guelfi  cites  a  law  of  Locros,  attributed 
to  Zaleucos,  and  a  place  in  Aristotle,  to  show  that  the 
need  of  an  independent  defense  of  possession  gave  rise 
sometimes  to  a  process  of  property.  The  Locrian  law, 
preserved  for  us  by  Polybius,  protected  the  possession 
of  a  chattel  in  controversy  for  a  certain  time  without 

1  Cf.  §  326  ante. 
2Cf.  §  338  ante. 


542  POSSESSION 

hindrance,  "nee  vi,"  until  a  legal  decision  was  rendered, 
as  is  equitable.  Aristotle  says  that  it  is  a  rule  of  justice  to 
give  preference  to  the  possessor  until  the  decision  is  ren- 
dered. Even  in  Rome,  according  to  Puchta,  the  institu- 
tion was  invoked  when  there  was  an  uncertainty  about 
the  possession  in  the  case  of  a  sale,  and  it  was  also  used 
to  solve  the  question  until  a  final  decision  on  the  prop- 
erty, which  made  the  possession  exist  per  se  and  apart 
from  the  property.  Niehbuhr,  in  his  "Romische  Ges- 
chichte,"  and  Savigny  say  that  the  protection  of  pos- 
session is  connected  with  the  "ager  publicus. ' '  The  citizens 
had  only  the  enjoyment  of  this  "ager,  "and  felt  the  need  of 
a  means  of  protecting  this  right  which  was  not  included  by 
the  laws  of  private  property.  This  means  of  protection 
was  the  pretorian  edict,  at  first  applicable  only  to  the  "ager 
vectigalis,"  then,  on  account  of  its  great  utility,  it  was 
extended  to  private  property.  Sciajola,  in  his  "Com- 
mento  alia  ProceturaSarda,"  admits  with  Puchta  that  the 
provisions  for  possession  have  been  preliminary,  but  he 
does  not  believe  that  they  have  been  the  origin  of  pos- 
session but  that  it  is  a  derivative  of  the  "ager  publicus." 
Van  Wetter  disagrees  from  Puchta,  and  tries  to  prove 
that  the  tests  on  which  the  latter  relies  show  only  that 
there  was  need  of  an  injunction  until  the  question  of 
possession,  which  was  a  question  of  ownership,  was 
settled.  Contrary  to  the  belief  of  Niehbuhr  and  Savigny 
is  the  fact  that  in  the  earliest  law  there  are  no  illusions 
to  possessoryinj unctions  over  the  "ager  publicus,"  which 
was  protected  by  a  special  injunction  "de  loco  publico 
fruendo."  Ihering  tries  to  show  that  the  cause  and  pur- 
pose of  the  possessory  injunctions  are  found  in  the  necessity 
of  the  preliminary  action  for  ownership,  but  Savigny 
had  already  noticed  this  necessity  in  the"vindieiae"and  in 
"manus  concertae."  Bruns,  in  his  work  "Das  Recht  des 
Besitzes  im  Mittelalte  und  in  der  Gegenwart,"  showed 


ROMAN  LAW  543 

clearly  that  these  injunctions  were    for  the  protection 
of  the  right  of  possession. 

§  343.  Possession  in  Roman  Law.  If  it  is  true 
that  the  nature  of  things  is  nothing  but  their  birth 
at  definite  times  and  with  definite  characteristics, 
as  Vico  taught,  the  modern  doctrine  of  possession, 
like  every  other  doctrine,  cannot  be  understood  without 
tracing  its  first  elements.  These  are  found  by  study- 
ing the  laws  of  Rome  and  the  common  and  canon  law. 
This  Milone  did  not  do  in  his  study  "Possesso  delle  Cose 
e  dei  Diritti."  Roman  law  divided  possession  into  three 
kinds,  the  "naturalis  possessio,"  or  simple  detention;  the 
"possessio,"  enriched  by  work;  and  the"civilis  possessio," 
founded  on  a  just  title,  good  faith,  and  leading  to  title  by 
prescription.  In  the  early  law  books  it  is  said  "possessio 
animo  et  corpore  constat."  It  seems  that  the  "animus 
possidendi"  includes  the  "animus  domini"  or  the  posses- 
sion with  title  to  the  property  or  possession  with  any 
other  title,  as  Van  Wetter  and  Milone  show.  This  intent 
is  lacking  in  the  agent  who  keeps  the  object  for  another. 
It  is  lacking  also  to  the  factor,  bailee,  and  pledgee  who 
have  possession  by  contract  and  not  by  any  property 
rights.  The  "juris  quasi-possessio"  embraces  the  cases 
of  personal  and  real  servitudes.  The  Roman  law  treated 
as  a  possessor  the  pawnee-creditor  or  him  who  took  in 
emphyteusis,  the  owner  of  the  right  in  the  air,  and  the 
bailee  only  when  the  parties  to  the  bailment  allowed  him 
possession  to  break  the  prescriptive  right,  and  him  who 
has  the  object  by  virtue  of  a  "precarium."  Rationally,  of 
these  five  cases  of  "possessio"  only  three  are  regular,  that 
is,  the  first  three  which  have  to  do  with  property  rights; 
but  the  last  two,  those  of  bailment  and  "precarium," 
constitute  an  anomaly  in  the  philosophy  of  law  because 
they  are  without  the  sphere  of  the  "jura  in  re."  We 
know  that  the  means  of  defense  of  possession  were 


544  POSSESSION 

peculiar,  some  of  them  like  the  interdicts,  and  some  were 
general  actions  like  the  "condictiones." 

§  344.  Possession  in  Modern  Law.  The  three  kinds 
of  law,  the  canon,  common,  and  feudal,  applied  the 
right  of  possession  to  new  property  rights  in  the 
form  of  offices,  dignities,  immunities,  and  taxes.  It 
clearly  is  not  rational  to  confuse  public  functions  with 
private  rights.  But  the  application  of  the  right  of 
possession  to  these  functions,  considered  as  "jura  in  re" 
while  they  rightly  cannot  be  such,  was  not  illogical 
and  contradictory.  The  canon  law  made  no  innovation 
besides  this  extension  of  the  "unde  vi"  of  the  Romans 
through  the  "actiospolii"  which  applied  it  to  new  kinds  of 
chattels,  and  to  personalty.  The  common  law  followed 
the  maxim  already  cited;1  the  hand  should  make  the 
hand  safe,  and  therefore  held  that  the  voluntary  tradi- 
tion of  a  thing  made  by  one  who  was  not  its  owner  to  a 
third  party  in  good  faith  should  pass  the  property  to  the 
latter.  To  overcome  the  severity  of  such  a  rule  they 
had  to  have  recourse  to  an  equitable  action,  which, 
however,  could  not  be  used  against  innocent  third 
parties.  The  French  law  accepted  this  maxim  and 
amplified  it,  not  permitting  the  right  to  pursue  a  thing 
which  had  not  been  stolen  or  lost.  There  was,  therefore, 
no  possessory  action  for  such  things,  but  the  principle 
was  absolute,  that  possession  as  far  as  personalty  was 
concerned  was  as  good  as  title.  This  was  necessary  to 
increase  facility  in  trade  and  was  allowed  only  because  of 
universality  of  personalty,  less  by  "sapit  quid  immobile" 
than  by  the  "universitas."  The  ancient  French  law 
allowed  a  "complainte"  for  the  disturbance  of  possession, 
and  a  "reintegrande"  for  theft:  the  first  presupposes  the 
Roman  condition  of  legal  possession  for  a  year  and  a  day 
before  the  infringement;  the  second  does  not  demand 

1  Cf.  §  226  ante. 


MODERN  LAW  545 

possession  for  a  year  and  a  day,  and  according  to  the 
Scholiasts  could  be  availed  of  even  by  detainers.  Is  it 
rational  that  the  condition  of  a  year  and  a  day  should  be 
brought  down  from  the  Roman  law?  Does  it  conform  to 
principle  to  accord  the  action  of  the  "spoilatio"  even  to 
detainers?  We  may  notice  first  of  all  that  the  Roman 
year  of  prescription  did  not  regard  the  acquisition  of  the 
right  but  the  duration  of  the  interdiction,  although  in 
certain  cases  the  Roman  law  required  the  exercise  of  the 
right,  within  the  year  which  preceded  the  interdiction,  that 
was  based  on  acts  done  in  that  time  or  on  acts  affecting 
personalty  destined  to  pass  freely  from  hand  to  hand ;  as 
in  the  case  of  the  "interdictum  de  itinere  privato"  which 
required  thirty  days  for  exercise,  and  in  the  "utrubi"  which 
presupposed  possession  "majori  parti  anni."  The  posses- 
sion of  a  year  and  a  day  (the  "saisine"  of  the  French  law) 
is  connected  with  the  German  "gewere."  The  "gewere 
recht"  depends  upon  possession  for  a  year  and  a  day  with- 
out interruption  by  the  counter  claimant,  and  is  based  upon 
his  silence.  It  dispossesses  a  possessor  only  by  the  proof 
of  an  adverse  acquisition  of  possession,  but  it  does  not  dis- 
pense with  an  oath  on  the  justice  of  his  possession.  The 
"saisine"  was  originally  the  same  as  the  "gewere"  because 
they  were  acquired  in  the  same  way,  that  is,  by  entering 
into  possession  and  by  inheritance,  and  were  equivalent 
to  a  possession  based  on  enjoyment;  but  "saisine"  had  one 
advantage  that  "gewere"  could  not  give.  Because  getting 
free  of  its  feudal  element  and  of  the  title  of  investure,  it 
was  based  on  the  conception  of  an  abandonment,  as 
shown  by  silence  for  a  year  and  a  day,  and  also  on  the 
conception  of  the  presumption  of  property.  Thus  pos- 
session is  transformed  into  a  provisional  property  and 
becomes  a  presumption  in  French  law,  changing  the 
method  of  its  protection  from  that  allowed  by  Roman 
or  canon  law.  Possession  is  no  longer  viewed  per  se,  but 


546  POSSESSION 

in  relation  to  property.  It  changes  its  fundamentals, 
though  maintaining  the  ancient  methods  of  defense.  The 
'  'saisine"  shows,  therefore,  the  deviation  from  Roman  prin- 
ciples as  well  as  from  those  of  reason,  by  which  possession 
was  an  institution  independent  and  separate  from  owner- 
ship, as  Viti  has  clearly  shown  inhis"CommentoSistema- 
tico  del  Codice  di  Procedura  Civile."  It  is  not  right  to 
allow  a  detainer  to  have  recourse  to  the  action  for  theft 
(regarding  it  only  as  a  remedy  against  violence)  since  it 
is  essentially  possessory,  as  may  be  seen  from  its  his- 
torical origin  which  (an  extension  of  the  "unde  vi")  pre- 
supposes legal  possession.  Yet  the  detainers'  right  to 
the  action  of  spoliation  cannot  be  denied  if  we  only  allow 
two  kinds  of  possession,  legal  and  natural,  as  the  French 
writers  have  done.  Civil  possession  would  have  all  the 
necessary  conditions,  and  the  natural  would  have  none  of 
them.  And  hence  it  is  clear  that  civil  possession  would 
be  confused  with  detention,  and  consequently  we  must 
allow  detainers  an  action  for  theft.  But  we  must  not 
forget  that  logically  there  cannot  possibly  be  less  than 
three  kinds  of  possession,  — detention,  civil  possession, 
and  prescriptive  possession.  Between  detention  and  civil 
possession  the  difference  lies  in  the  intent  to  keep  the 
thing.  Prescriptive  possession  is  ordinarily  charac- 
terized by  a  good  title  and  good  faith,  but  sometimes  it 
has  no  need  of  such  elements  and  need  show  only  the 
marks  of  publicity,  undisturbed  continuity,  etc.  The 
action  for  theft,  if  we  accept  this  definition,  can  only  be 
given  to  him  who  has  legal  possession. 

§345.  Possession  in  Rational  Law.  Relative  Theories. 
But  let  us  consider  the  philosophical  base  of  the  insti- 
tution. The  theories  are  various,  but  can  be  divided, 
as  Ihering  says,  into  relative  and  absolute,  depending 
upon  whether  they  treat  it  as  having  a  principle  within 
or  without.  The  first  relative  theory  is  that  of  Savigny; 


ABSOLUTE  THEORIES  547 

that  the  violation  of  the  right  of  possession  is  the  viola- 
tion of  the  person,  and  that  therefore  the  injunctions  are 
analogous  to  "actiones  ex  delicto."  Cavallari,  in  his  "In- 
stitutiones  Juris  Romani,"  wrote  that  the  action  for  the 
right  of  possession  was  established  to  avoid  fights  be- 
tween citizens.  Rudorf ,  in  his  appendix  to  Savigny  and 
Serafini  in  his  "Instituzioni,"  repeats  that  an  attack  upon 
possession  is  a  breach  of  public  peace.  Thibaut  states 
that  the  protection  of  the  right  of  possession  is  based  on 
the  presumption  of  law  in  favor  of  the  "statu  quo." 
Ah rens  makes  the  basis  of  possession  the  maxim,  "Quilibet 
praesumitur  bonus  et  Justus  donee  probetur  contrarium." 
Cans,  in  "System  der  Romischen  Civilrechts,"  and 
Trendelenburg  consider  that  possession  indicates  prop- 
erty. Romagnosi  and  Zacharia,  in  "Handbuch  des 
Franzosischen  Civilrechts,"  Miihlenbruch  in  "Doctrina 
Pandectarum,"  Troplong  and  De  Crescenzio  in  "Sis- 
tema  del  Diritto  Civile  Romano,"  teach  that  the  base 
of  possession  is  the  presumption  of  property.  Ihering 
looks  upon  possession  as  the  advance  guard  of  property; 
that  the  protection  of  the  right  of  possession  is  as  nec- 
essary as  protection  of  the  right  of  property. 

§  346.  Absolute  Theories  of  Possession.  Among  the 
absolute  theories  the  earliest  is  that  of  Cans,  which 
was  followed  by  the  others  of  Puchta,  Molitor,  Bruns, 
and  Randa.  Cans  thinks  that  the  right  to  a  thing 
through  particular  will  and  universal  will  or  law  is 
property,  while  to  have  it  only  by  your  particular  will 
is  possession;  the  particular  will  is  a  substantial  some- 
thing and  should  have  a  protection  at  law.  Puchta 
and  Walter  add  that  possession  is  a  right,  and  that 
it  is  referable  to  the  person  himself.  Molitor  gives 
the  characteristics  of  possession,  saying  that  a  fact 
without  a  will  behind  it  remains  in  the  category  of 
facts  and  does  not  take  its  place  among  rights,  and  that 


548  POSSESSION 

the  will,  a  common  factor  of  right,  brings  about  the 
"jus  possessions, "  based  on  the  "animus  possidendi." 
Bruns  thinks  that  the  protection  of  possession  is  founded 
on  the  thought  that  man,  through  the  single  fact  of  his 
personality,  has  control  over  things.  When  his  will 
to  own  by  taking  possession  of  the  object  becomes 
effective  control  of  anything  without  an  owner,  it  estab- 
lishes an  absolute  right  or  right  of  property ;  but  when 
it  concerns  things  not  without  an  owner,  it  brings  into 
existence  a  right  which  yields  only  upon  the  proof  of 
property.  The  control  of  the  possessor,  until  the  moment 
this  proof  is  made,  cannot  be  disturbed,  and  therefore 
"possessor  hoc  ipso  quod  possessor  est  plus  juris  habet 
quam  ille  qui  non  possidet."  Randa  writes  that  the 
will  when  realized  objectively,  even  if  unjustified,  must 
have  a  right  to  appear  as  defendant  in  a  court  of  law. 

§  347.  Criticism  of  Absolute  and  Relative  Theories  of 
Possession.  After  deep  reflection  and  a  thorough  ex- 
amination of  all  the  absolute  and  relative  theories,  it  is 
right  to  infer  that  in  all  of  them  there  will  be  found  one 
identical  fundamental  conception,  although  it  may  be  de- 
veloped in  different  manners,  that  is,  the  inviolability 
of  the  individual  person  in  connection  with  his  things. 
Let  us  first  compare  the  relative  theory  of  Savigny  with 
the  absolute  doctrine  of  Cans,  and  after  an  accurate  crit- 
ical analysis  the  common  principle  will  appear,  as  Pepere 
has  shown.  It  is  true  that  Savigny  contradicts  Cans 
because  the  latter  does  not  see  how  particular  will,  some- 
times unjust,  can  develop  into  a  right.  It  is  true,  too, 
that  Cans  contradicts  Savigny  by  saying  that  the  right 
of  possession  cannot  owe  its  origin  to  its  violation 
because  its  violation  presupposes  the  right.  Yet  it  is 
undeniable  that  Savigny  thinks  the  ultimate  rationale 
of  the  possession  lies  in  the  intimate  relation  between  the 
possessor  and  the  things  possessed ;  wherefore,  in  the  vio- 


CRITICISM  OF  THEORIES  549 

lation  of  the  fact  of  possession,  though  perhaps  it  is  not  a 
right,  as  he  says,  there  is  a  tortious  change  of  the  personal 
position  which  can  be  remedied  by  the  restoration  of 
the  prior  conditions  which  the  violation  has  affected. 
The  conception  of  the  inviolability  of  the  person  is  found 
in  the  doctrine  of  these  two  philosophers,  with  this 
difference:  that  in  Savigny  it  assumes  a  negative  form, 
while  with  Cans  it  is  positive,  very  similar  to  the  cele- 
brated theory  of  Kant  about  the  philosophic  and  rational 
nature  of  possession.  To  the  same  conception  we  can 
reduce,  too,  the  theories  of  public  peace  and  of  the 
presumption  that  everyone  is  held  good  and  honest 
until  the  contrary  is  proven,  because  the  base  of  public 
peace  is  respect  of  the  human  personality,  individual  and 
collective.  And  in  all  men  the  elements  of  a  rational 
and  free  nature  are  found  in  their  highest  develop- 
ment. The  doctrine  which  makes  possession  a  pre- 
sumption of  property  and  the  bulwark  of  ownership  is 
reducible  in  the  last  analysis  to  the  same  conception, 
that  is,  of  property  as  the  projection  of  the  inviolable 
person.  Neither  can  it  be  argued  that  such  a  principle 
is  the  origin  of  all  rights,  and  therefore  cannot  be  the 
specific  base  of  the  right  of  possession,  because  the 
jurist  philosopher  should  first  of  all  look  to  see  if  posses- 
sion is  a  simple  fact  and  one  which  can  be  a  right.  It 
is  not  possible  to  begin  this  research  without  having 
recourse  to  the  early  authorities  and  to  the  supreme 
criterion  of  rights,  that  is,  the  principle  of  personality. 
On  the  other  hand  this  principle  is  the  specific  base 
of  the  absolute  control  of  things  without  an  owner  or 
the  relative  right  in  things  which  have  an  owner,  as  long 
as  his  rights  are  not  clearly  shown.  This  explanation 
of  Bruns  is  not  really  contradictory  to  the  theory  of 
Cans,  which  also  gives  a  specific  base,  because  the  abso- 
lute right  or  full  control  is  the  effect  of  the  realization 


550  POSSESSION 

of  the  particular  will  recognized  as  a  will  to  control  by 
society  and  the  law;  and  the  relative  right  which  gives 
rise  to  possession  is  derived,  too,  from  the  individual 
will,  protected,  too,  like  the  general  will,  but  as  absolute 
control,  except  on  the  proof  of  a  further  right.  The 
theory  of  Cans  cannot  be  interpreted  otherwise  if  you 
wish  to  give  it  a  serious  consideration.  Speaking  of 
the  universal  will  only  in  relation  to  property  and  not 
in  relation  to  possession,  one  would  not  know  how  to 
give  the  latter  any  protection. 

§  348.-  Possession  -is  a  Right.  One  can  see  how  far 
from  true  was  the  affirmation  of  Grotius:  "Possessoria 
judicia  juris  civilis  sunt."  Ruggieri,  in  his  work  "II 
Possesso,"  reproduces  this  belief,  holding  that  the  pro- 
tection of  possession  does  not  arise  from  its  nature,  from 
its  absolute  virtue,  but  directly  from  positive  law  in 
consideration  of  its  external  relations,  which  are  of 
great  convenience ;  that  it  is  best  to  keep  things  as  they 
are  (in  doubtful  cases)  and  leave  the  possessor  in  pos- 
session. Possession  is  a  fact  that  is  protected  by  inter- 
dict and  creates  a  prescriptive  right  for  external  reason 
of  convenience  and  discretion.  All  that  we  have  said 
before  is  the  most  direct  criticism  of  this  manner  of 
looking  upon  the  institution  in  which  the  author  has 
skillfully  made  use  of  the  early  Roman  authorities. 

§  349.  Intent  is  Necessary  to  Possession.  Ihering, 
in  a  recent  work  "Der  Besitzwille,"  has  expressed  a  new 
objective  doctrine  about  the  "animus  domini"  contra- 
dicting the  subjective  doctrines  of  Savigny,  but  he 
has  not  changed  his  basic  ideas  on  possession.  In  con- 
formity with  the  principles  as  developed  by  him,  he  has 
studied  this  state  of  fact  which  has  legal  consequences. 
Savigny  regards  intent  as  an  essential  requisite  of 
legitimate  possession,  but  Ihering  says  that  possession 
is  a  fact.  It  is  necessary  to  guard  its  exteriority,  the 


INTENT  NECESSARY  551 

"corpus,"  and  when  this  element  is  proved,  that  is,  the 
"corporalis  possessio,"  the  "animus"  which  is  included 
therein  is  proved  as  well.  According  to  him,  the  objec- 
tive fact  is  enough  to  prove  legal  possession.  This  argu- 
ment can  show  the  impossibility  of  legitimate  possession 
in  an  absolute  sense  because  the  thing  is  external,  or  in  a 
relative  sense  because  there  is  a  "causa  possidendi" 
which  excludes  it.  The  principle  that  possession  has  to 
do  only  with  the  objective  fact  cannot  be  shaken  unless 
it  is  determined  by  positive  law  that  there  is  simple 
detention,  unless  physical  possession  is  impossible,  or  un- 
less some  special  circumstance  is  proved.  Now  apart 
from  the  question  of  the  proof  of  the  intent  it  is  clear  that 
Ihering  thinks  that  it  is  essential,  and  shows  the  differ- 
ence between  detention  and  possession.  He  will  look  to 
circumstances  to  prove  that  the  intent  cannot  be  shown 
by  the  presence  of  a  special  "causa  possidendi,"  but  this 
does  not  mean  that  the  intent  is  not  an  essential  condi- 
tion. The  intent  exists  for  Ihering  either  in  the  "cor- 
poralis possessio"  or  a  presumption.  In  substance  the 
law  accords  the  possessory  action  only  to  him  who  has 
this  intent  in  fact  or  by  presumption.  Ihering  himself 
says  that  the  opinion  which  bases  legal  possession  not 
on  the  actual  and  concrete  will  of  the  individual,  but 
on  a  presumptive  will,  that  is,  on  the  will  which  the 
possessor  ought  to  have,  is  the  same  as  the  objective 
doctrine,  distinguishing  detention  from  possession  by 
the  "causa  possidendi."  But  if  the  "causa  possidendi" 
is  what  causes  the  difference  between  physical  and  legal 
possession,  it  is  clear  that  legal  possession  cannot  be 
admitted  except  in  cases  in  which  the  presumptive  will 
is  shown.  The  simple  "possessio  corporalis"  is  no  true 
indication  of  legitimate  possession.  It  is  an  equivocal 
fact,  because  it  may  or  may  not  be  accompanied  by  the 
intent  which  the  possessor  ought  to  have.  How  can  we 


552  POSSESSION 

presume,  therefore,  the  mtent  or  presumptive  will  from 
the  fact  of  the  "corpus'1?  Ihering  does  not  solve  this  diffi- 
culty. Neither  does  he  agree  that  it  is  only  positive  law 
which  allows  true  possession  on  the  failure  of  intent 
or  impossibility  of  subjecting  the  object  to  corporal  pos- 
session. From  this  point  of  view  his  theory  is  in  accord 
with  those  of  Grotius  and  Ruggieri. 


DEFINITION  OF  OBLIGATION  553 


CHAPTER  XII 
OBLIGATIONS 

OBLIGATIONS.— THEIR  ORIGIN.-^THE  SOURCES  OF  OBLIGATION 
—THEIR  VARIOUS  KINDS  AND  FORMS.— THE  DIFFERENT  FORMS 
AND  THEIR  DISTINCTION. 

§  350.  Definition  of  Obligation.  One's  wealth  does 
not  consist  only  of  property  rights  but  includes  also 
personal  rights,  that  is,  obligations.  A  personal  right 
is  a  "jus  ad  rem,  jus  ad  rem  consequendam,"  and 
therefore  consists  of  "res  incorporalis,  quse  tangi  non 
potest,"  while  a  property  right  is  a  "jus  in  re,"  and  refers 
to  "res  corporalis,  quse  tangi  potest."  An  obligation 
has  been  denned  as  a  legal  bond  by  which  one  is  held 
to  do  or  give  something.  This  has  a  different  mean- 
ing when  it  is  applied  to  property  rights  or  to  the  other 
free  rights  of  a  person.  The  right  of  obligation,  how- 
ever, from  this  point  of  view,  is  an  extension  of  the 
property  right.  An  obligation,  as  an  element  of  one's 
estate,  is  the  obligation  which  looks  principally  to  one's 
material  interests,  or,  as  the  saying  goes,  has  a  financial 
significance.  The  jurisconsults,  laying  stress  upon  the 
cause  of  such  obligations,  said,  "Ea  enim  in  obligatione 
consistere  quse  pecunia  lui  prsestarique  possunt."  The 
obligation  called  by  Stahl  and  Ahrens  ethico- juristic, 
for  example,  conjugal  fidelity,  has  a  basis  entirely  moral 
and  is  superior  to  human  caprice  and  does  not  enter  at 
all  into  one's  estate,  being  without  financial  value  of 
its  own.  The  rational  principle,  which  distinguishes  an 
ethico-juristic  obligation  from  one  which  has  a  monetary 


554  OBLIGATIONS 

value,  is  the  limited  nature  of  man,  "unus  homo,  nullus 
homo" ;  man  should  act  with  other  men  in  order  to  attain 
his  end.  The  idea  of  man  is  always  the  idea  of  a  specie. 
Through  such  relations  he  becomes  self-sufficient  and 
acquires  the  autarchy  of  which  Aristotle  speaks.  The 
tendency  to  development  urges  individuals  to  a  recip- 
rocal exchange.  By  this  every  man  increases  his  strength, 
and  in  the  increase  of  the  strength  of  individuals  lies 
the  increase  of  the  force  of  the  social  whole. 

§.  351.  Prerequisites  of  an  Obligation.  An  obligation 
supposes  at  least  two  persons:  an  obligor  and  obligee; 
that  is,  creditor  and  debtor.  The  right  to  be  created 
is  a  direct  relation  between  one  person  and  another 
and  therefore  is  not  binding  except  upon  the  parties  to 
it.  The  obligation  does  not  imply  a  power  over  the  per- 
son of  the  obligee,  but  a  temporary  limitation  of  his 
liberty  in  certain  respects.  This  conception  is  expressed 
in  the  early  books  as  follows:  "Obligationum  substan- 
tia  non  in  eo  consistit  ut  aliquod  corpus  nostrum  aut 
servitutem  nostram  faciat  sed  ut  alium  nobis  obstrigat 
ad  dandum  aliquid  vel  faciendum  vel  praestandum." 
The  object  must  be  possible  in  a  physical,  moral,  and 
legal  aspect;  in  other  words,  the  obligation  must  con- 
form to  the  laws  of  nature  and  freedom.  When  anyone 
undertakes  to  do  or  to  give  what  he  is  physically  in- 
capable of  doing  or  giving,  the  contract  is  illegal.  The 
contracting  parties  break  the  natural  law  of  free- 
dom. They  break  the  law  of  freedom  if  they  promise 
to  do  acts  contrary  to  morality  or  subversive  of  law, 
because  freedom  is  acquired  with  truth  and  justice; 
without  them  there  is  no  liberty,  but  caprice  and  license. 
The  object  of  an  obligation,  as  value,  which  enters  into 
the  estate,  must  be  reducible  to  money.  The  breach 
of  an  obligation  entails  a  penalty  in  damages  capable 
of  pecuniary  estimation.  Damages  include  the  real 


PREREQUISITES  555 

diminution  of  the  estate  and  the  gain  which  has  been 
lost  ("Damnum  emergens  et  lucrum  cessans"),  and  the 
penalty  includes  also  "omne  quod  interest,"  being  co- 
extensive with  the  harm  done.  The  theory  of  damage 
is  applicable  directly  to  financial  obligations  and  ap- 
proximately to  obligations  of  another  kind,  like  those 
growing  out  of  bodily  harm  or  dishonorable  conduct. 
Bruns  has  observed  that  in  acts  which  harm  the  organic 
or  moral  activity  of  man  it  is  not  possible  to  create  an 
indemnity  to  overcome  the  harmful  effects,  but  it  is 
not  out  of  place  to  allow  pecuniary  indemnity  for  the 
creation  of  the  means  of  a  new  activity  or  different 
enjoyment.  Let  us  recognize,  with  Ihering  and  Wind- 
scheid,  that  the  judicial  protection  should  be  extended  to 
ideal  interests,  and  that  the  conception  of  interest  should 
be  full  and  relative,  including  the  necessities  of  every 
class  of  life,  varying  according  to  the  time,  place  and 
race,  as  Ihering  says:  "Let  us  not  deny  that  money, 
besides  acting  as  a  penalty,  can  often  be  a  certain  satis- 
faction, and  that  from  the  action  for  damages  and  from 
the  money  satisfaction  accorded  in  some  cases  of  tort 
it  is  not  right  to  argue  that  the  object  of  the  obligation 
is  commercial ;  but  let  us  state  merely  that  the  obligation 
capable  of  affecting  one's  estate  is  ordinarily  susceptible 
of  a  direct  pecuniary  appraisement,  although  sometimes 
the  value  of  the  object  in  question  could  not  be  exactly 
stated  in  money,  since  sentimental  feelings  of  the  indi- 
vidual cannot  be  weighed.  But  if  an  exact  valuation 
is  lacking  we  can  always  put  an  indirect  or  approximate 
pecuniary  appraisement  on  it,  which  will  represent  a 
penalty  and  a  satisfaction  or  help  in  ethico -juristic 
obligations  without  pretending  to  express  their  object 
in  money,  and  will  be  part  of  the  estate  though  the 
obligation  had  nothing  to  do  with  it."  In  a  word,  an 
obligation  generally  cannot  be  conceived  of  without  a 


556  OBLIGATIONS 

quid  pro  quo,  that  is,  without  an  end  in  view,  and  the 
consideration  is  the  same  as  the  immediate  or  intrinsic 
end,  independent  of  the  internal  and  subjective  motives, 
as  we  will  see  forthwith. 

§352.  Five  Sources  of  Obligation.  Obligations,  accord- 
ing to  modern  jurists,  are  derived  from  five  sources, — 
contract,  quasi-contract,  tort  and  quasi-tort,  and  the 
statutes.  The  Roman  jurisconsults  recognized  only  four : 
"Obligationes  aut  ex  contractu  nascuntur  aut  ex 
maleficio,  aut  proprio  quodam  jure,  ex  variis  causarum 
figuris."  The  "variae  figurse  causarum"  are  described  in 
the  Roman  books  as  "quasi  ex  contractu,  quasi  ex 
maleficio."  The  philosophy  of  law  can  reduce  these 
sources  to  two,  —  to  human  will  and  natural  juristic 
order, —  because  all  obligations  (except  the  contractual) 
are  not  assumed  freely  but  are  imposed  directly  or  in- 
directly by  the  law  of  reason,  as  we  will  see.  In  truth, 
quasi-contract  results  from  the  legitimate  act  of  a  man 
who  becomes  bound  to  another  without  a  definite  agree- 
ment. Quasi-contract  is  distinguished  from  tort  because 
it  is  caused  by  an  act  and  by  contract  originating  in  the 
will  of  one  of  the  parties.  Examples  of  quasi-contract 
are  the  acceptance  of  a  bill,  the  payment  of  a  debt 
of  a  third  person,  and  the  "communio  incidens."  The 
base  is  the  average  will  of  man  which  law  presumes, 
and  of  which  Lassalle  speaks,  or  the  presumed  consent, 
that  is  in  harmony  with  the  principles  of  equity.  In 
the  acceptance  for  honor  of  a  bill  there  is  no  contradic- 
tion in  speaking  of  a  quasi-contract;  one  can  suppose 
the  consent  of  the  "dominus  negotii."  As  it  is  logical  to 
infer  that  the  man  who  wishes  the  end  wishes  the  means, 
there  is  an  implied  duty  to  reimburse.  Rosmini  looks 
upon  this  form  and  nomenclature  as  absurd,  not  being 
able  to  conceive  of  a  mean  between  contract  and  non- 
contract.  He  believes  that  in  such  form  the  law  im- 


SOUNDING  IN  TORT  557 

agines  a  consent  and  that  there  is  in  fact  none,  and  that 
by  the  principles  of  equity  he  explains  obligations  based 
on  defective  agreements  as  quasi-contracts.  But  he 
does  not  agree  that  the  common  presupposition  of 
obligations  is  will:  this  conception  eliminates  at  once 
all  objection  and  shows  that  there  is  not  a  true  "fictio 
juris"  where  the  just  will  of  human  nature  is  found.  He 
does  not  understand  the  average  will  of  man,  which  he 
confuses  with  the  changeable  and  concrete  will  of  the 
individual,  when  he  says  that  presumptive  consent  is 
uncertain  and  cannot  produce  certain  rights  and  obli- 
gations because  the  "dominus  negotii"  is  sometimes  in- 
capable of  consenting  through  madness  or  infancy.  The 
average  will  conforms  to  reason.  It  is  the  will  which 
a  man  should  have  in  the  conduct  of  life.  It  is  "sanse 
mentis."  Such  a  will  is  always  certain  and  could  be 
found  in  the  fool,  if  not  being  a  fool  he  were  sane,  or 
in  the  child  if  he  was  not  such,  but  was  an  adult.  No 
other  kind  of  will  can  be  raised  to  a  principle  of  law, 
that  is,  a  manifestation  of  reason.  It  is  clear  that  the 
obligation  in  quasi-contract  comes  directly  from  the 
presumption  of  the  consent,  from  the  will,  and  indi- 
rectly from  the  statutes  which  are  based  thereon. 

§  353.  Obligations  Sounding  in  Tort.  From  the  con- 
ception of  a  natural  juristic  order  come,  too,  the  obliga- 
tions which  are  the  consequence  of  fraud  or  negligence. 
The  order  infringed,  the  law  broken,  there  arises  a 
necessity  of  restoration,  which  is  had  through  penalties 
and  reimbursement  for  the  harm  done.  A  tort  is  the 
result  of  fraud  or  harm.  Negligence  is  a  kind  of  quasi- 
tort,  being  an  infraction  of  due  diligence  ("debitum 
diligentiae")  which  has  caused  some  damage.  Neg- 
ligence differs  from  accident  because  in  the  former  case 
that  has  not  been  foreseen  which  could  be  foreseen, 
but  with  an  accident  the  unforeseen  was  unforeseeable. 


558  OBLIGATIONS 

Tort  and  quasi-tort  in  modern  times  produce  first  a 
penalty  and  then  the  duty  to  compensate.  When  the 
private  penalties  of  Roman  law,  by  which  the  defendant 
could  pay  the  plaintiff  a  sum  of  money,  were  abolished 
and  the  principle  that  a  penalty  is  a  demand  of  social 
justice  and  a  system  of  public  law  was  installed,  the 
principal  obligations  dependent  upon  tort  and  quasi-tort 
were  no  longer  part  of  private  law,  as  with  the  Romans, 
but  there  was  only  the  accessory  obligation  (called 
Nicoline,  after  the  Roman  family  of  that  name)  which 
looks  to  the  interests  damaged.  From  the  natural 
juristic  order,  however,  there  arise  directly  some  obliga- 
tions of  a  monetary  order.  It  is  not  true  that  all  the 
obligations  originating  in  statutes  belong  to  public  law 
because  statutes  can  establish  obligations  for  the 
interest  of  private  utility,  and  declare  rights  which  can 
be  acquired  in  the  strict  sense  of  the  word. 

§  354.  Divisions  of  Obligations  with  regard  to  their 
Subject  and  Object.  Obligations,  to  no  longer  consider 
their  origin  (from  which  point  of  view  they  are  vol- 
untary and  involuntary),  are  divided  into  various  kinds 
according  to  their  subject  and  object,  the  tie  created 
and  the  legal  action  that  protects  it.  The  subject 
can  be  a  single  debtor  and  a  single  creditor,  or  several 
debtors  and  one  creditor,  or  vice  versa,  or  several  debt- 
ors and  several  creditors.  Obligators  from  this  point 
of  view,  and  especially  in  the  case  of  the  number  of 
subjects,  are  either  (pro  rata)  several  or  (in  solidum) 
joint.  In  several  obligations  the  debtors  and  the  creditors 
have  reciprocal  rights  and  duties.  Itis  not  one,  however, 
but  is  divided  into  as  many  parts  as  there  are  parties  to 
its  obligation.  The  joint  obligation  is  one  unity  essentially 
subjective  by  which  each  of  the  debtors  has  the  right  of 
demanding  full  performance  by  the  creditors,  and  each 
one  of  the  creditors  must  perform  the  entire  obligation  for 


SUBDIVISIONS  559 

the  debtor  or  debtors.  The  Roman  law  made  a  differ- 
ence between  the  "obligatio  corporalis"  and  the  "obliga- 
tio  in  solidum"  because  in  the  first  there  is  a  common 
obligation,  while  in  the  second  there  are  several  persons 
held  to  the  performance  of  the  entire  duty  imposed  upon 
each  of  them.  If  in  the  first  the  creditor  pays,  he  frees 
his  co-creditors  acting  in  the  cause  of  all  and  cannot  claim 
a  right  of  contribution  as  in  the  joint  obligation;  and  if  an 
obligation  becomes  absolute  by  a  judgment  against  one, 
all  his  fellow  contractors  are  free,  something  which  does 
not  occur  in  a  joint  obligation.  A  distinction  somewhat 
analogous  is  made  by  the  jurists  who  follow  the  theories 
of  Molineo,  and  who  say  that  there  are  joint  and  joint 
and  several  obligations.  The  first  are  based  on  an  explicit 
agreement  and  on  a  presumed  contract  with  the  parties 
"ad  servandam  et  perpetuandam  obligationem" ;  the 
second  arise  from  a  fact  or  statute  and  do  not  presume 
the  agreement.  The  result  common  to  both  kinds  is 
the  "deberi  in  totum,"  but  the  prescription  by  a  debtor 
or  creditor  in  the  joint  obligation  is  a  defense  for  all,  and 
a  plea  of  abatement  against  one  obligation  is  good  against 
all,  while  this  is  not  true  of  an  imperfect  joint  obligation. 
The  different  results  depend  upon  the  reciprocal  agree- 
ment between  the  parties  presumed  in  the  case  of  a 
perfect  joint  obligation  but  not  permitted  in  the  im- 
perfect one. 

§  355.  Subdivisions  of  Obligations  as  they  regard  Objects. 
As  to  the  object,  obligations  can  be  divisible,  indivisible, 
alternative,  and  potential.  An  obligation  is  divisible  if  the 
promise  is  capable  of  being  divided  naturally  or  legally ; 
it  is  indivisible  if  the  thing  or  act  is  not  susceptible  of 
division  (as  a  promise  to  give  a  horse),  or  if,  though  capable 
of  division,  the  parties  have  not  so  considered  it  (as  the 
contract  to  build  a  house).  Indivisibility  is  an  objective 
unity  and  is  enforced  against  the  heirs.  In  this  it  differs 


560  OBLIGATIONS 

from  jointness,  which  is  extinguished  when  the  subjects 
to  which  it  belongs  are  destroyed.  The  writers  who 
follow  Molineo  are  wont  to  construct  an  obligation  per- 
fectly indivisible  and  an  obligation  imperfectly  indivisi- 
ble. The  former  arises  from  nature  and  agreement  and 
has  in  consequence  the  "deberi  pro  parte  sed  in  totum." 
It  should  be  "pro  parte"  because  the  parties  do  not 
constitute  a  single  unity,  as  in  the  joint  obligation,  and 
nevertheless  should  be  one  "ratione  rei  et  facti."  On 
demand  against  one  of  the  creditors  a  good  defense  should 
bind  all  the  debtors  in  the  perfect  indivisible  obligation, 
since  no  debtor  can  preserve  his  part  of  the  right  with- 
out preserving  that  of  his  fellows.  The  imperfect  indi- 
visibility is  established  "ob  incongruitatem  solutionis," 
that  is,  to  avoid  the  harm  which  would  be  caused  by  a 
divided  payment;  and  exists  only  between  the  heirs  of  the 
obligee  and  not  among  the  heirs  of  the  obligor,  which 
proves  that  there  cannot  be  a  full  "individuum  soluti- 
onis," as  Pothier  believes.  Here  the  single  payment 
alone  is  not  divided  because  its  division  would  do 
harm.  The  agreement  is  alternative  if  there  are 
several  distinct  things  of  which  the  obligee  must 
necessarily  only  do  one,  and  he  has  the  election.  In 
the  potential  agreement  the  objects  are  not  in  the 
consideration  and  the  obligee  can  at  his  pleasure  do 
what  he  wants. 

§  356.  Kinds  of  Vincula  in  Obligations.  As  to  their 
obligations,  agreements  are  simple,  conditional,  modal, 
and  penal.  Simple  agreements  are  without  any  pro- 
visions as  to  the  means.  A  condition  implies  a  future 
or  uncertain  event  upon  which  the  obligation  depends. 
Conditions  are  various  according  to  the  quality  of  the 
event,  the  effect  which  they  produce,  and  the  manner  in 
which  they  are  shown.  In  respect  to  the  quality  of  event 
conditions  are  affirmative  if  its  happening  is  necessary 


KINDS  OF  VINCULA  561 

to  the  contract,  negative  if  it  is  necessary  to  the  contract 
that  it  should  not  happen,  potential  when  the  event 
depends  upon  the  will  of  the  obligor  or  obligee,  casual  if 
it  depends  upon  chance,  mixed  when  it  depends  partly 
upon  the  will  of  the  third  party  and  partly  upon  chance. 
Of  course,  they  can  be  possible  or  impossible  physically, 
morally,  and  legally.  An  agreement  is  not  binding  which 
depends  upon  a  mere  potential  condition,  that  is,  from 
the  "si  voluero"  of  the  obligee,  or  upon  some  insignificant 
act  of  his  that  is  confusible  with  a  "si  voluero";  for 
example,  "I  will  give  you  a  hundred  dollars  if  you  look  me 
in  the  face."  Ageements  are  void  which  are  based  upon  a 
condition  that  is  impossible  from  any  of  the  three  points 
of  view,  but  the  agreement  is  valid  if  it  is  based  upon 
a  condition  of  not  doing  an  impossible  thing,  because  the 
condition  must  be  fulfilled.  A  negative  immoral  condi- 
tion is  admitted  because  the  law  cannot  disregard  the 
promise  of  an  advantage,  accepted  to  induce  the  other 
party  not  to  do  harm.  An  affirmative  immoral  condition, 
if  casual,  should  be  recognized  as  legal  as  to  the  obligee, 
since  it  depends  upon  the  act  of  the  third  party  and  is 
for  him  the  same  as  any  other  event.  As  to  the  result, 
the  conditions  are  suspensive  or  revocatory  if  an  acquisi- 
tion of  a  right  or  the  carrying  out  of  the  obligation  de- 
pends thereon.  The  first  keeps  the  obligation  in  suspense 
until  the  fulfillment  of  the  condition.  When  the  event 
happens  the  obligation  is  considered  not  as  placed  upon 
some  condition,  but  as  originating  from  the  contract. 
If  the  event  does  not  happen  the  duty  is  considered  as 
never  having  existed.  The  second  does  not  hold  over 
the  execution  of  the  obligation,  but  upon  the  happening 
of  the  event  the  obligation  is  considered  as  not  having 
existed  at  all,  and  the  obligor  must  return  what  he  has 
received.  In  respect  to  the  forms  of  conditions  they  are 
express,  tacit,  or  implied.  If  the  end  of  the  contract 


562  OBLIGATIONS 

depends  upon  a  future  and  certain  event  it  does  not 
affect  the  obligation,  but  merely  retards  its  execution. 
A  penal  clause  is  a  kind  of  antecedent  liquidation  of 
damages.  It  is  used  when  the  contractor  wishes  to  insure 
the  fulfillment  of  the  contract  and  promises  something 
in  case  of  failure  or  delay.  The  penal  clause  is  an  acces- 
sory, and  therefore  the  nullity  of  the  contract  involves  the 
nullity  of  the  clause  itself. 

§  357.  Obligations  in  Civil  and  Natural  Law.  As  to 
actions,  obligations  are  classified  as  civil  and  natural. 
Civil  obligations  are,  of  course,  founded  on  natural 
law,  (on  which  positive  law  is  moulded,)  as  well  as 
the  natural  obligations,  and  are  fully  recognized  by  the 
statutes  which  give  a  right  of  action.  Natural  obliga- 
tions are  founded  also  on  civil  law,  which  recognizes 
them  without  giving  them  full  effect,  and  protects  them 
only  by  way  of  exceptions  when  their  immediate  origin 
is  rational  law.  Natural  obligations  differ  from  moral 
duties  ("officia")  which  obtain  their  strength  only  from 
morals.  These,  from  the  viewpoint  of  positive  law,  are 
incomplete  obligations,  not  absolutely  inefficacious,  born 
of  the  need  of  recognizing  in  certain  relations  legal  pur- 
poses and  reasonable  restraints,  but  which  cannot  be 
given,  for  many  causes  of  social  interest,  a  right  of  action. 
In  natural  obligation  we  can  recognize  the  "vinculum 
sequitatis"  and  "debere  natura,"  as  the  old  Roman  law 
said,  and  the  execution  of  the  promise  is  regarded  not  as 
an  act  of  moral  justice,  but  as  the  fulfillment  of  a  legal 
duty  of  a  "debitum  naturale."  It  excludes,  therefore, 
the  recovery  of  what  has  been  paid.  There  is  no  possi- 
bility of  restitution  in  cases  of  filial  ingratitude  or  pride. 
Certainly  this  "vinculum  aequitatis,"  which  is  a  "vincu- 
lum juris"  in  the  philosophy  of  law,  would  be  extortion  if 
not  kept  within  confines  of  a  determinate  nature  by  posi- 
tive law.  Personality  itself,  in  order  to  be  the  effective 


EXTINGUISHMENT  563 

subject  of  rights  and  duties,  has  need,  as  we  have  seen,1 
of  a  civil  investiture.  There  is  no  need  of  wonder  if  such 
a  recognition  is  given  to  the  "obligatio  naturalis," 
which  does  not  signify  that  there  is  no  other  base  for  the 
obligations  than  that  of  civil  law.  Rational  law  has  no 
practical  effect  without  the  recognition  of  the  statutes, 
but  this  does  not  mean  that  law  and  personality  are  crea- 
tions of  the  statutes.  Natural  obligations  have  a  foun- 
dation beyond  positive  law  in  the  sense  that  they  are 
derived  from  the  "recta  ratio,"  which  is  shown  in  our 
civil  statutes,  but  which  nevertheless  does  not  arise  from 
them.  This  indicates  a  superior  source,  but  one  not 
absolutely  extrinsic  and  transcendent,  because  natural 
law  is  developed  in  positive  law  and  is  connected  with 
it  as  the  true  interpenetrates  with  the  certain.  From 
another  aspect  the  "obligatio  naturalis"  lies  in  positive 
law.  It  is  founded  on  the  statutes  because  it  can  have 
more  value  as  an  exception.  Windscheid  thinks  that  it 
represents  the  inorganic  part  of  the  legal  system,  and  he  is 
right  from  an  historical  point  of  view.  The  ancient  "jus 
civile"  was  restricted,  narrow,  and  ironbound,  taking  no 
account  of  many  relations  which  were  really  juristic. 
Little  by  little  these  relations,  regulated  at  first  by  the 
"jus  gentium"  or  the  "jus  naturale,"  became  part  of  the 
"jus  civile."  The  statement  by  Windscheid,  considered 
in  itself,  is  not  the  rule,  because  the  incompleteness  of 
the  "obligatio  naturalis"  depends  upon  its  own  purpose 
and  nature.  We  can  say  that  its  perfection  consists  in 
its  defective  origin  by  which  it  cannot  be  equal  to 
the  "obligatio  civilis." 

§  358.  Extinguishment,  (a)  Payment.  Obligations  are 
extinguished  in  ten  ways:  The  first  is  the  payment 
defined  in  the  strict  sense  as  "prseistatio  eius  quod 
in  obligatione  est."  The  statutes,  to  promote  the  in- 

1  Cf.  §  170  ante. 


564  OBLIGATIONS 

terests  of  trade  and  render  redress  easy  against  the 
debtor,  who  paid  in  order  to  be  free  of  the  contract, 
have  introduced  subrogation,  consisting  in  a  fictitious 
settlement  by  which  a  debt  extinguished  by  the  pay- 
ment of  a  third  party  is  considered  as  existing  to  the 
latter's  advantage,  who  can  use  all  the  rights  growing 
out  of  the  contract  to  recover  what  he  has  paid. 

(b)  Novation.    The  second  way  of  extinguishing  a  con- 
tract is  a  novation.     "Novatio  est  prioris  debiti  in  aliam 
obligationem    transfusio   atque   translatio."     Novation 
can  be  subjective  if  it  concerns  the  subject  of  an  agree- 
ment, objective  if  it  concerns  its  object.  Subjective  nova- 
tion takes  place  when  a  new  contractor  is  substituted  for 
the  old  towards  whom  the  creditor  is  free,  or  when  a  new 
creditor  is  substituted  for  the  former  one  who  is  freed. 
In  the  first  case,  the  consent  of  the  creditor  of  the  former 
debtor  and  of  the  new  debtor  are  needed.     It  is  different 
from  the  extinguishment  of  a  debt  which  needs  only  the 
consent  of  the  granting  creditor  and  the  grantee,  and  pro- 
duces no  novation.     In  the  second  case  there  can  be  the 
delegation  or  appropriation.     Delegation  needs  the  con- 
sent of  the  obligor  of  the  new  and  old  obligee,  while 
appropriation  needs  only  the  consent  of  the  debtor  and 
new  creditor.     The  principle  that  governs  the  require- 
ment  of  consent  in  respect  to  persons  in  novation  is 
always  placed  in  the  protection  of  the  reasonable   in- 
terests of  the  parties  who  could  be  harmed  by  the  change. 
Objective  novation  is  where  a   new  object   is   substi- 
tuted for  the  old   object  and   contract,    changing   the 
modality  of  the  contract. 

(c)  Release.     The  third  form  of  extinguishment  is  a 
release  of  the  promise  or  gratuitous  abandonment  of  it. 
It  is  really  a  gift,  and  therefore  needs  mutual  consent. 

(d)  Substitution.     The  fourth  form  of  extinguishment 
is  substitution.     "Debiti  et  crediti  inter  se  contributio." 


EXTINGUISHMENT  565 

The  promises  should  be  of  the  same  kind  because  "aliud 
pro  alio  invito  creditore  salvinequit,"  and  should  be  liqui- 
dated and  mature ;  that  is,  the  certainty  of  the  "quantum 
et  an  debeatur"  should  not  be  lacking  and  should  not  be 
dependent  upon  conditions  or  events.  Substitution  (the 
utility  of  which  was  discovered  by  Pomponius:  "Interest 
nostra  potius  non  solvere  quam  solutum  repetere")  ac- 
quires in  modern  times  the  greatest  importance,  and 
becomes  in  large  cities  the  most  important  method  of  ex- 
tinguishment. Civilized  people  go  through  three  stages; 
at  first  they  adopt  a  metallic  coinage,  then  a  mixed  coin- 
age, and  when  they  have  fully  developed,  they  limit  the 
issue  of  notes  and  adopt  a  system  of  extensive  credit. 
Luzzatti  has  correctly  compared  the  economy  of  circu- 
lation in  its  last  phase  to  a  pyramid  whose  ample  base 
is  of  metal,  and  whose  apex  is  of  bank  notes,  while  the 
whole  body  of  the  edifice  is  built  of  commercial  paper, 
deposits,  and  substitutions.  The  tendency  of  bank  notes 
to  economize  metallic  coinage  is  not  so  great  as  that 
possessed  by  other  kinds  of  credit,  especially  through  the 
system  of  substitution,  represented  by  the  circulation 
of  checks  assigned  in  the  form  of  orders  to  pay  either  by 
a  "clearing  house"  or  house  of  exchange.  Patterson, 
Bagehot,  and  Pelgrave  show  by  statistics  the  law  of 
English  trade  in  which  through  bank  notes  substitution 
takes  the  place  of  credit.  The  sum  issued  by  the  Clear- 
ing House  in  1844  did  not  surpass  forty  times  the  total 
of  the  paper  issued.  In  1872  it  was  a  hundred  and 
thirty  times  as  great.  And  yet  England  and  the  United 
States  were  at  one  time  countries  run  mad  with  paper 
money. 

(e)  Confusion.  The  fifth  method  of  extinguishment 
is  confusion  in  one  person  of  the  two  qualities  that  are 
mutually  destructive ;  that  is,  the  quality  of  debtor  and 
creditor. 


566  OBLIGATIONS 

(f)  Destruction.    The  destruction  of  the  thing  which 
is  owed   or  an   event  which  renders  the  fulfillment  of 
the  contract  impossible  without  fault  on  the  part  of 
the  debtor,  an  event  such  as  would  absolutely  destroy 
the  object,  is  the  sixth  manner  of  extinguishment.     This 
destruction  is  not  extended  to  contract  with  objects  of 
a  general  nature  because  "genera  numquam  pereunt." 
This  sixth  method  is  based  upon  the  failure  of  the  ob- 
ject of  the  contract. 

(g)  Rescission.     The  seventh   method  is   annulment 
or  rescission.     Annulment  is  produced   by  an  inherent 
vice  in  the  contract.     Rescission  depends  upon  breach. 
The  obligation  is  gone  in  the  case  of  annulment.    Rescis- 
sion can  result  in  the  avoidance  of  the  obligation  or  its 
continuance  with  the  payment  of  the  part  due. 

(h)  Fulfillment.  The  eighth  method  is  the  fulfillment. 

(i)  Prescription.     The  ninth  lies  in  prescription. 

(j)  Death  of  Debtor.  The  tenth  and  last  is  the  death 
of  the  debtor  with  the  obligation  unfulfilled,  where  he 
was  bound  to  do  or  not  to  do  something  in  a  relation 
established  on  personal  considerations.  In  agreements 
of  giving,  the  death  of  the  debtor  is  not  a  cause  of 
extinguishment,  because  the  thing  can  be  given  as  well  by 
his  heirs.  With  the  death  of  a  man  all  those  relations 
end  which  are  joined  in  a  most  intimate  manner  to  him, 
but  those  relations  continue  which  are  financial. 


ETHICAL  ORIGIN  567 

CHAPTER    XIII 
CONTRACT  AND   ITS  FORMS 

THE  NOTION  OF  CONTRACT.  —  ITS  PHASES  AND  BASIS.  —  ESSEN- 
TIAL REQUISITES.  —  VICES  OF  CONSENT  AND  SOME  RECENT 
THEORIES.  —  THE  INTERPRETATION  OF  CONTRACTS.  —  THEIR 
CLASSIFICATION;  AND  THE  DOCTRINES  OF  KANT  AND  TREN- 
DELENBURG. 

§  359.  Ethical  Origin  of  Contract.  Contract  arises 
from  voluntary  obligation  and  comprehends  all  the  part 
of  private  law  that  is  called  from  it  "jus  voluntarium." 
A  contract  is  clearly  connected  with  ownership  because 
the  will  of  the  owner  is  the  untrammelled  disposer  of 
the  object  and  can  keep  or  give  it  away  or  can  provide 
for  his  successor  by  an  agreement.  The  agreement  is 
made  by  the  free  will  and  consists  in  the  exchange  of 
the  utilities  of  life.  Its  rationale  is  found  in  the  limita- 
tions of  human  nature  and  in  the  tendency  to  autarchy, 
as  we  have  said  before.1  This  proves  once  more  that 
the  ethical  relations  of  a  higher  order,  although  not 
foreign  to  the  will,  cannot  be  ultimately  explained 
through  contract,  because  the  latter  has  in  it  a  factor 
of  caprice  and  accident  and  is  influenced  by  utility. 

§  360.  Definition  of  Contract.  A  contract  according 
to  the  Roman  jurisconsults  is  "duorum  vel  plurium  in 
idem  placitum  consensus."  We  must  note,  however,  that 
two  people  can  agree  theoretically  and  still  there  will  be 
no  contract.  Hence  it  follows  that  the  addition  by 
Heineccius  to  the  Roman  definition  is  good,  that  is,  "de 
re  danda  vel  facienda  vel  prsestanda."  Modern  writers 

1  Cf.  §  347  ante. 


568  CONTRACT  AND  ITS  FORMS 

define  a  contract  as  the  agreement  of  two  or  more  per- 
sons for  a  legal  purpose  that  has  a  financial  value. 
Among  these,  Rosmini  looks  upon  a  contract  as  an 
agreement  and  legal  effect  of  the  corresponding  acts 
of  two  persons,  one  of  whom,  the  owner  of  a  right,  vol- 
untarily frees  himself  from  the  legal  chain  (with  or  with- 
out conditions)  so  that  the  other  may  become  owner  of  it 
if  he  wishes;  and  the  other  makes  an  efficient  acceptance, 
fulfills  the  conditions,  if  any,  and  appropriates  the  right. 
A  contract,  therefore,  is  an  accepted  promise;  a  promise 
without  acceptance  is  the  desire  to  give,  to  do  or  not  to 
do  something.  A  promise  according  to  the  Roman  law 
is  "pollicitatio."  "Pactum  est  duorum  consensus  atque 
conventio,  pollicitatio  vero  solius  offerentis  promissum." 
In  three  cases  the  "pollicitatio"  is  enough  to  obligate 
the  promisor  because  of  the  particular  favor  given  by 
the  statutes  to  certain  institutions,  that  is,  when  the 
promise  creates  a  dowry  ("dos")  or  is  in  favor  of  a 
municipality  to  obtain  an  office  or  for  some  religious 
purpose,  such  as  an  offering  to  God. 

§  361.  History  of  Contract.  In  primitive  times  con- 
tract did  not  and  could  not  have  the  importance  which 
it  has  to-day.  Primitive  law  was  essentially  imperative 
because  it  had  to  coerce  men  into  obedience  to  the 
statutes  towards  which  they  were  most  hostile.  For 
this  purpose  it  needed  a  strong  hand.  Centuries  of 
slavery  preceded  through  historical  necessity  the  cen- 
turies of  liberty  and  personal  initiative.  The  community, 
not  the  individual,  was  the  base  of  legal  government 
in  primitive  times.  The  individual  did  not  create  rights 
and  duties  of  himself  but  rather  as  the  head  of  a  tribe, 
village  community,  or  family.  Contracts  were  binding 
between  the  heads  of  particular  communities.  They 
were  not  easy  of  creation,  being  surrounded  by  many 
formalities,  because  the  mind  was  deep  dyed  with  sen- 


HISTORICAL  PHASES  569 

sations  and  fancies  which  took  the  place  of  reality, 
as  we  have  said  before.1  Formality  and  ceremony, 
absolute  necessities,  had  the  greatest  importance  because 
they  gave  strength  to  the  promise  or  showed  the  absence 
of  consent.  Good  faith  had  but  little  power,  says  Maine, 
for  in  the  Homeric  poems  the  deceitful  cunning  of  Ulys- 
ses is  praised  as  fully  as  the  gallantry  of  Achilles.  If  bad 
faith  is  victor  in  our  day,  we  must  remember  the  in- 
definite extent  and  immense  complexity  of  modern  social 
relations  and  the  increase  of  objects  and  opportunities 
for  it. 

§  362.  Historical  Phases  of  Contracts.  Maine  also 
shows  clearly  the  three  phases  of  contract,  that  is,  the 
phase  in  which  the  contractual  idea  was  confused  with 
the  transfer  of  title,  that  of  the  separation  of  contract 
from  pacts,  and  the  other  of  the  absorption  of  contracts 
in  agreement.  The  Romans  at  first  called  a  contract  a 
"nexum"  and  the  "nexum"  involved  the  "jura  in  re" 
and  was  the  means  of  transferring  property.  Subse- 
quently the  "nexum"  referred  to  contract  only,  while  the 
"mancipatio"  was  applied  to  ownership.  The  same  de- 
velopment affected  the  "nexum"  and  the  "patria  po- 
testas,"  which  originally  included  in  its  authority  the 
son,  wife,  and  property  and  then  was  restricted  to  its 
narrow  use  of  "mancipium"  and  "manus."  When  con- 
tract was  separated  from  the  transfer  of  ownership  it  was 
looked  upon  as  a  pact  accompanied  by  an  obligation 
and  was  distinguished  from  a  mere  pact  which  had  no 
obligation.  After  the  unity  of  initial  vagueness  there 
came  the  antithesis  of  development.  Of  the  four  kinds 
of  contracts  in  Roman  law,  the  eldest  was  the  verbal, 
of  which  the  "stipulatio"  is  typical,  consisting  in  a  ques- 
tion by  him  who  could  accept  a  promise,  and  the  answer. 
Written  contracts  appeared  later,  made  by  writing  the  sum 

lCf.  §26$  ante. 


570  CONTRACT  AND  ITS  FORMS 

due  into  an  account  book,  and  of  still  later  date  were  real 
contracts,  in  which  the  execution  of  one  part  for  equitable 
reason  imposed  the  duty  of  fulfillment  of  the  other.  Last 
came  the  consensual  forms:  pledge,  partnership,  sale,  and 
lease.  The  consensual  contracts  were  "jure  gentium" 
and  developed  when  Roman  commerce  became  general 
and  regular.  The  Roman  jurisconsults  nevertheless  be- 
lieved that  this  kind  of  contract  "was  primitive,  governed 
by  the  belief  in  the  historical  precedence  of  the  "jus  naturae 
et  gentium"  before  discussed.1  Let  us  here  observe  that 
what  is  more  spiritual  and  universal  cannot  appear  at 
the  beginning  but  at  the  end,  as  is  proved  by  the  eternal 
history  of  men  and  people.  In  the  third  period,  the 
pact  absorbed  the  contract  by  the  progress  of  the  "jus 
naturae."  Pacts  were  entitled  to  an  equitable  action 
which  supposed  a  consideration  but  did  not  have  the 
form  of  contract,  and  the  "obligatio  naturalis"  was  re- 
cognized and  protected  as  an  exception.  In  the  Middle 
Ages  the  Roman  conception  of  the  third  period  became 
more  explicit  and  the  difference  between  pact  and  con- 
tract disappeared,  especially  by  the  application  of  the 
law  of  the  "Longobardi,"  through  which  arose  the  "actio 
de  nudis  pactis."  Tacitus  had  already  said  of  the  Ger- 
mans, "vir  bonus  solis  verbisobligatur."  Every  agree- 
ment added  to  a  contract  "in  continent!  aut  ex 
intervallo"  gave  a  right  of  action.  A  strictly  legal 
contract  was  not  clearly  distinguished  from  an  equitable 
one.  All  contracts  were  thought  to  be  of  good  faith 
and  it  was  universally  admitted  that  fraud  or  deceit 
vitiated  them. 

§  363.  Duty  of  Keeping  Contracts.  The  duty  of 
keeping  a  contract  is  not  only  moral  but  legal.  Its 
breach  is  a  breach  of  good  faith  and  is  harmful  to 
acquired  interests  and  rights.  The  promisee  gives 

lCf.  §  153  ante. 


DUTY  OF  KEEPING  571 

up  his  property  and  transfers  it  into  the  power  of 
the  promisor  and  has  a  right,  therefore,  to  the  ful- 
fillment of  the  latter's  obligations,  through  mutuality. 
And  the  promisor  has  the  right  to  the  promised  objects 
which  have  already  become  his  by  the  meeting  of  the 
two  wills.  The  old  authorities  said  that  if  the  promisor 
retracted  his  promise  he  would  wish  to  join  to  himself 
something  legally  belonging  to  another,  and  the  promisee 
who  wished  to  rescind  would  subject  the  promisor  to 
a  new  acquisition  in  spite  of  himself;  in  both  cases  there 
would  be  clear  injustice.  Now  when  Fichte  states  that 
the  obligation  for  fulfilling  a  contract  arises  when 
one  party  begins  to  act  under  it,  he  follows  the  untrue 
theory  that  executory  obligation  is  exclusively  moral 
and  not  legal.  Fundamentally,  the  obligatory  force  of 
contract  lies  in  the  pre-agreement  of  the  parties  con- 
trolled by  the  rules  of  equity  and  justice.  Schlossmann, 
in  "Der  Vertrag,"  argues  against  this  that  this  force 
is  not  a  derivative  of  will  because  the  promisor  might 
not  intend  to  be  bound  as  in  obligations  in  which  the 
words  do  not  correspond  to  the  true  will  of  the  obligee. 
For  example,  he  who  contracts  as  a  joke  is  bound,  if  his 
declaration  makes  the  obligor  believe  that  it  is  a  serious 
proposition  to  do  or  to  give.  So  is  he  who  contracts  with 
a  mental  reservation  or  signs  papers  prepared  by  others 
without  reading  them.  Schlossmann  has  not  considered 
that  by  the 'meeting  of  the  minds  in  the  contract  there 
is  formed  a  common  will  which  is  law  between  the 
parties.  The  promissor  cannot  destroy  the  will  to  be 
bound  because  it  needs  mutual  agreement  to  destroy 
the  chain  which  has  been  forged.  If  some  obligations 
in  conventional  matters  are  created  simply  by  statute, 
which  represents  the  principle  of  justice  and  equity, 
and  are  not  voluntary  (although  they  arise  on  occasions 
of  a  voluntary  act  either  deceitful  or  fraudulent)  we  can- 


572  CONTRACT  AND  ITS  FORMS 

not  on  this  account  deny  that  the  other  obligations  owe 
their  origin  and  force  to  the  wills  of  the  parties.  In  the 
examples  given  by  Schlossmann  there  is  an  obligation 
through  the  imprudence  or  bad  faith  of  the  promisor 
or  subscriber:  "Nemo  ex  sua  culpa  beneficium  trahere 
debet;  factum  quique  suum  non  adversario  nocere 
debet."  On  the  other  hand,  there  is  the  maxim,  "Male- 
tiis  non  est  indulgendum."  The  belief  which  we  have 
emphasized  is  closely  connected  with  the  broader  but 
inaccurate  theory  on  the  subject  of  juridical  acts, 
many  of  which  are  contractual.  We  know  that  such 
acts  are  a  manifestation  of  will  with  the  object  of 
making,  changing,  or  destroying  a  legal  relation;  now 
it  is  stated  that  the  legal  effects  of  the  act  of  man  do  not 
depend  upon  private  will,  but  upon  the  statutes.  An 
act  of  man  is  a  fact,  to  which  the  statutes,  without  con- 
sidering the  intent,  and  therefore  without  regard  to 
the  legality  or  illegality  of  the  purpose,  attribute  certain 
definite  consequences.  There  is  something  true  in  this 
doctrine  in  that  the  statutes  recognize  and  regulate  legal 
consequences  and  acts  of  men,  according  to  a  criterion 
of  natural  causality  and  social  efficiency.  But  the  stat- 
utes do  not  create  legal  consequences,  as  they  do  not 
create  either  will  power  or  the  acts  resulting  therefrom; 
their  proper  scope  being  limited  to  recognition  and  punish- 
ment. In  life,  individual  acts  and  purposes  are  devel- 
oped which  the  law  recognizes  and  regulates,  and  some 
acts  and  purposes  are  accomplished  which  the  law 
forbids,  whence  the  unavoidable  difference  between  legal 
consequences  and  illegal  acts.  In  regulating  such  conse- 
quences, the  law,  influenced  always  by  their  natural  caus- 
ality and  social  efficiency,  allows  some  wished  for  by  the 
parties,  prohibits  some,  and  further  adds  others.  Law 
tends  through  regulations  to  realize  the  will  of  man,  but  in 
some  cases  the  effect  foreseen  is  not  legally  possible.  The 


ESSENTIALS  OF  CONTRACTS  573 

bequest  of  the  usufruct  of  perishable  things,  for  example, 
cannot  be  strictly  allowed  in  the  Roman  law,  therefore 
the  owner  of  the  usufruct  was  given  property  in  the 
things  themselves,  but  he  was  obliged  to  give  bond  for 
restitution  of  it  or  its  equivalent,  therefore  there  were 
legal  effects  of  which  the  grantor  had  no  knowledge  and 
which  were  not  especially  wished  for  by  him. 

§  364.  Essentials  of  Contracts.  The  duty  to  keep 
one's  contract  depends  upon  four  essential  requisites, 
that  is,  upon  capacity  of  will,  free  consent,  the  possi- 
bility of  carrying  out  the  promise,  and  the  considera- 
tion. The  contractor  should  be  a  person  who  has 
the  effective  use  of  his  reason  and  can  legitimately 
carry  out  his  intentions,  therefore  lunatics,  drunkards, 
minors,  and  in  general  those  who  must  subject  their 
will  to  the  will  of  others,  have  not  the  right  or 
capacity  to  contract.  The  consent  must  be  deter- 
minate, that  is,  it  must  be  an  act  of  firm  intention  to 
alienate  or  acquire.  It  must  necessarily  be  uniform  in 
both  parties,  otherwise  the  "idem  placitum"  would  not 
exist,  and  there  would  be  no  mutuality.  This  demands 
the  contemporaneous  meeting  of  the  minds  of  the 
parties.  Conversely,  if  diverse  desires  are  shown,  there 
is  no  true  consent,  as  in  the  example  in  which  one 
answers  negatively  to  an  offer  and  later  changes  his  mind 
and  accepts;  in  this  hypothesis  it  cannot  be  known 
whether  he  who  has  made  the  offer  still  holds  open  his 
proposition,  and  a  second  answer  must  be  received  be- 
fore there  is  a  contract.  Through  ratification  a  consent 
made  postfactum  has  the  strength  of  a  contemporaneous 
promise.  A  ratification  has  such  an  effect  naturally 
and  not  through  any  positive  institution,  as  can  be 
seen  from  analysis.  Consent  either  express  or  tacit 
must  be  clear.  Admitting  that  the  consent  must  be 
determinate,  uniform,  reciprocal,  contemporaneous, 


574  CONTRACT  AND  ITS  FORMS 

and  clear,  according  to  the  analysis  of  Rosmini  and 
Ptolemy,  yet  if  it  is  not  free  it  has  no  legal  effect. 
Consent  is  free  when  the  activity  of  man,  by  which  it  is 
effective,  works  without  obstacles,  for  example,  mistake, 
fraud,  or  duress,  to  impede  its  exercise.  Here  the  word 
free  has  a  very  broad  and  generic  sense. 

§  365.  Offer  and  Acceptance.  The  requisite  of  con- 
temporaneous consent  gives  rise  to  the  question  of 
when  the  contract  is  perfected,  when  offer  and  accep- 
tance cannot  take  place  simultaneously.  Are  such 
contracts  made  from  the  moment  of  acceptance  or 
when  the  notice  of  acceptance  is  brought  to  the  offerer? 
Let  us  follow  out  the  theory  that  the  contract  is  bind- 
ing from  the  time  in  which  the  acceptance  is  made  known 
to  the  offerer.  The  consent  is  the  meeting  of  two  minds 
or  the  agreement  in  the  "idem  placitum."  This  meeting 
is  not  blind  temporal  coincidence,  but  rather  their  inter- 
penetration  not  possible  without  conscious  effort.  The 
minds  unite  only  in  the  consciousnesses  of  the  persons 
who  wish  to  make  them  unite,  and  manifest  this  desire  by 
definite  acts.  If,  when  they  are  in  the  same  place,  words 
spoken  and  understood  by  the  contractors  give  rise  to 
an  obligation,  a  letter  or  telegram  of  acceptance  must 
be  received  by  the  offerer,  if  he  is  absent,  because  there 
is  an  "obligatio  mittentis  seu  scribendis."  Suppose,  in 
the  case  of  people  contracting  face  to  face,  that  the  offerer 
was  physically  incapable  of  understanding  the  answer  or 
the  words  of  the  offeree,  it  is  evident  that  the  contract 
would  not  be  complete  until  such  an  understanding  was 
brought  about.  So,  if  the  offerer  has  not  received  notice 
of  acceptance,  there  can  only  be  a  "propositum"  without 
an  obligation.  A  letter  or  telegram  from  the  offerer  are 
always  inanimate  things  and  cannot  be  considered  as 
agents  to  receive  and  acknowledge  the  acceptance.  We 
cannot  allow  a  contract  to  exist  where  one  of  the  con- 


OFFER  AND  ACCEPTANCE  575 

tractors  does  not  know  of  the  acceptance  of  the  other, 
and  therefore  has  no  knowledge  of  his  own  obligations. 
Offer  and  acceptance  are  necessary  to  a  contract,   and 
they  should  be  governed  by  the  same  rules.     The  offer 
creates  an  obligation  when  it  is  known  and  accepted  by 
him  to  whom  it  is  addressed;  the  acceptance  is  binding 
only  after  it  has  been  brought  to  the  knowledge  of  the 
offerer.     There  is  no  need  for  introducing  a   different 
rule  for  the  two  parties,  binding  the  offerer  from  the  very 
beginning  and  letting  the  offeree  have  free  foot  as  to  ac- 
ceptance or  refusal.     Justice  is  preserved  in  the  system 
which  we  have  defended  because  the  offerer  can  revoke 
his  offer  as  long  as  the  offeree  knows  nothing  of  it,  and 
the  offeree  can  withdraw  his  acceptance  until  it  has  reached 
the  offerer.      As  soon  as  the  notice  of  acceptance  has 
reached  the  offerer,  however,  the  two  minds  have  met 
and  interpenetrated  and  the  contract  is  made,  because 
the  two  minds  have  met  and  fused  and  there  is  no  reason 
to  give  another  notice  to  the  offeree,  thus  going  on  in 
an  endless  chain.     Under  the  principle  that  the  contract 
is  made  when  the  acceptance  is  known  by  the  offerer, 
we  must  make  some  exceptions  commanded  by  reason 
and  by  the  nature  of  things  themselves.     In  the  first 
place,  it  is  understood  that  this  rule  is  not  applicable 
where  the  offerer  has  expressed  or  implied  that  he  would 
assume  the  obligations  before  hearing.     Theory  teaches 
us  that  in  unilateral  promises  or  contracts  we  must  pre- 
sume such  an  intent.     In  contracts  of  pledge  or  deposit,1 
the  sending  of  the  object,  its  receipt  and  retention,  with- 
out refusal,  imply  its  acceptance.     This  is  not  the  case, 

1  The  words  used  by  our  author  as  examples  of  contracts  for  goods  are 
"mutuo,"  "commodato."  "pegno,"and  "deposito."  A  mutuum  is  a  loan 
of  consumable  goods  which  the  borrower  can  use  and  return  in  kind.  A 
commodatum  is  where  there  is  a  loan  for  use  by  the  borrower  who  is  to 
return  the  same  goods.  A  pegno  is  a  common  law  pledge.  A  deposit  is 
where  an  object  is  loaned  for  custody  and  care,  but  the  custody  is  the 
more  important. 


576  CONTRACT  AND  ITS  FORMS 

however,  in  some  consensual  contracts,  bailments  for 
work,  and  agencies,1  though  the  contractor  to  whom 
the  offer  is  made  immediately  carries  out  his  part.  This 
principle  is  not  applicable  in  certain  urgent  transactions 
of  business  life  through  force  of  custom.  Contracts 
made  over  the  telephone  are  not  made  between  people 
at  a  distance,  because  the  contractors  are  in  direct  means 
of  communication  in  spite  of  the  distance  between 
them.  The  presence  of  the  contractors  should  not  be 
understood  in  an  absolute  manner  implying  that  they 
should  see  each  other  and  study  one  another  mutu- 
ally from  head  to  foot,  because  it  is  enough  that  their 
minds  be  in  accord  while  making  the  contract. 

§  366.  Fraud  and  Mistake.  Mistake  is  a  false  belief 
about  the  contract  into  which  a  contractor  falls  of 
his  own  accord;  fraud  is  mistake  caused  by  the 
other's  trickery  or  deceit.  Fraud,  the  old  authori- 
ties teach,  differs  from  mistake  only  in  the  source 
from  which  it  is  derived,  but  is  fundamentally 
the  same  as  mistake,  both  being  reducible  to  an 
untrue  belief.  If  the  mistake  is  about  the  substance 
of  the  object  or  an  accidental  quality  considered  as 
essential  by  the  parties,  or  about  the  person  without 
whom  contractor  would  not  have  been  entered  into  the 
contract,  the  contract  is  void  under  the  old  Roman 
maxim,  "Non  videntur  qui  errant  consentire."  Mis- 
take about  an  accidental  quality  (not  considered  as 
essential  by  the  parties)  does  not  render  the  con- 
tract void,  but  gives  rise  to  indemnity  for  the  difference 
between  the  terms  of  the  contract  and  the  contract  as 
carried  out,  for  nobody  can  enrich  himself  to  the  harm 
of  another.  Fraud  practised  by  one  of  the  contractors 

'The  words  used  in  the  original  text  are  "mandate"  and  "commis- 
sione."  A  mandate  is  the  same  as  a  deposit  except  that  the  care  is 
more  important  than  the  custody.  A  commission  is  a  common  law 
agency. 


DURESS  577 

or  by  a  third  person  with  his  knowledge,  if  it  is  such 
as  to  induce  the  contract,  is  an  even  stronger  reason 
for  its  invalidity,  because  its  enforcement  would  be  a 
manifest  injustice.  The  contractor  who'  is  a  victim  of 
cunning  can  demand  the  nullification  of  the  contract  and 
reimbursement  for  any  damage  suffered.  The  fraudu- 
lent contractor  cannot  do  this,  otherwise  both  would 
be  placed  in  the  same  legal  position  with  an  evident  un- 
balancing of  the  scales  of  proportion,  which  is  the  law. 

§  367.  Duress.  Duress  can  be  either  physical  or 
moral:  the  former  makes  a  man  submit  like  a 
machine,  and  excludes  all  meeting  of  the  minds  be- 
cause the  license  of  him  who  uses  duress  is  absolutely 
dominant;  the  second  can  be  exerted  by  depriving 
the  victim  of  the  use  of  his  mind  and  free  will,  thus 
rendering  him  incapable  of  giving  a  valid  consent. 
If  the  fear  is  not  such  as  to  destroy  the  intelligent 
use  of  the  mind  and  free  will,  the  consent  must  be 
considered  as  valid,  but  in  this  case  there  is  injustice 
on  the  part  of  him  who  desires  to  enforce  the  con- 
tract, and  the  other  contractor  should  be  allowed  to 
rescind  or  proceed  with  the  contract.  The  fear  must 
be  real,  "non  metus  vani  hominis,"  and  must  be  such 
as  would  induce  a  reasonable  man  to  enter  the  contract. 
The  severe  Roman  law  gave  no  remedy  to  him  who  made 
a  contract  under  force  or  violence.  Later,  the  pretorian 
equity  allowed  a  tempering  control  under  the  "exceptio 
quod  metus  causa."  It  is  clear  that  a  statute  should  use 
great  precaution  and  assume  the  medial  way,  that  is, 
should  not  favor  the  abuse  of  moral  influence  or  encour- 
age moral  cowardice. 

§  368.  Contract  is  the  Meeting  of  the  Minds.  It 
may  be  useful  to  develop  a  little  more  at  length  the 
above  conception  of  error,  fraud,  and  duress.  There 
are  some  German  jurists,  as  Schlossmann,  Bahr,  and 


578  CONTRACT  AND  ITS  FORMS 

others,  who  base  the  validity  of  contract  entirely  on  the 
words  of  the  contractors  and  deny  that  the  State  can 
exercise  a  right  of  nullification,  in  the  first  place,  because 
the  declared  will  is  not  understood  to  produce  of  itself  a 
juristic  change,  but  rather  visible  or  audible  signs  by 
which  the  other  is  persuaded  of  the  existence  of  a  will  to 
make  the  indicated  change.  Windscheid,  in  the  "Archiv 
fur  Civilistische  Praxis,"  disagrees  with  these  jurists 
and  shows  with  little  difficulty  that  the  declarations  of 
the  parties  of  their  intention  becomes  external  and  com- 
prehensive. It  would  be  strange  if  the  parties,  in  entering 
into  relations  with  each  other,  only  produce  sound  waves 
or  come  together  only  in  such  a  way  as  to  perceive  light 
waves  in  place  of  understanding  one  another  and  of 
agreeing  and  creating  rights  and  duties.  It  is  clear  they 
can  move,  speak,  or  write,  but  their  movement,  words,  or 
gestures  are  means  or  signs  of  their  thought  and  will, 
through  which  the  transmission  of  rights  is  made  and 
understood.  Bahr  says  that  a  contractor  who  has  fallen 
into  a  mistake  knows  that  the  other  must  be  governed 
by  his  words,  and  therefore  consents  to  their  apparent 
meaning.  He  treats  good  faith  and  the  importance  of 
trade  with  such  consideration  that  he  would  obli- 
gate him  whose  signature  has  been  gotten  by  fraud. 
He  adds  that  everyone  in  certain  cases  (as  in  that  of 
a  mental  reservation)  admits  the  efficacy  of  statements 
which  do  not  conform  to  the  will.  Bahr  has  not  consid- 
ered that  a  contractor  who  is  a  victim  of  mistake  has  not 
intended  to  make  the  declaration  different  from  the  one 
in  his  mind,  which  conforms  to  his  real  will,  and  intends 
that  the  other  contractor  should  be  governed  by  what 
he  supposes  his  statement  has  been,  and  does  not  con- 
sent in  the  least  to  the  appearance  of  what  he  says.  Good 
faith  and  commercial  interests  should  not  be  made  to 
prevail  against  the  law  which  (in  order  to  protect  the 


VOID  AND  VOIDABLE  579 

interest  of  the  bona  fide  debtor  or  endorsee)  does  not 
recognize  the  liability  of  him  in  whose  name  a  receipt 
or  a  commercial  paper  has  been  forged.  The  rational 
principle  that  a  grantee  cannot  have  greater  rights  than 
his  grantor  is  not  logically  reconcilable  with  the  theory 
advanced.  The  grantee  in  good  faith  has  not  greater 
rights  than  the  guilty  or  forging  grantor ;  that  is,  he  has 
no  right  and  consequently  the  appearance  has  no  weight. 
In  law,  a  mental  reservation  has  no  effect  because  it  is  a 
purely  internal  and  unexpressed  volition.  Thus  it  can  be 
looked  upon  as  an  example  of  the  "idem  esse  et  non  esse," 
for  it  is  impossible  that  the  will  should  be  self-contradic- 
tory. A  declaration  is  an  act  of  will.  It  is  the  will  made 
sensible  in  determinate  form  and  it  cannot  be  coexistent 
with  a  mental  reservation  which  negatives  the  act. 

§  369.  Void  and  Voidable  Contracts.  The  French 
jurists  divide  legal  mistakes  into  mistakes  which  do 
not  give  rise  to  consent,  called  "ostative,"  and  into 
those  which  destroy  it.  The  Roman  jurisconsults  saw 
a  logical  difference  in  the  error  in  corpore,  subsisting 
in  the  mistake  of  one  thing  for  another,  and  the  error 
in  substantia,  which  was  a  mistake  of  the  material  of  the 
contractual  object.  Both  mistakes  brought  about  the 
annulment  of  the  contract  according  to  the  statement  of 
Ulpian:  "Ego  me  fundum  emere  putarem  cornelianum, 
tu  mihi  vendere  sepronianum  putastis,  quia  in  corpore 
dissensimus, — emptio  nulla  est.  Inde  quaeritur  si  ipso 
corpore  non  erratur,  sed  in  substantia  error  sit,  ut  puto 
si  acetum  pro  vino  vendat,  ses  pro  auro,  vel  plumbum 
pro  argento  nullam  esse  venditionem  puto  quotiens  in 
materia  erratur."  In  both  cases  there  is  an  "aliud 
pro  alio."  The  error  in  corpore  corresponds  to  the 
"ostative"  mistake  of  the  French,  and  the  error  in 
substantia  to  the  mistake  which  destroys  consent.  In 
the  philosophy  of  law,  a  distinction  which  has  only  a 


580  CONTRACT  AND  ITS  FORMS 

logical  or  intellectual  value  has  no  weight,  because  the 
two  kinds  of  mistake  are  always  reducible  to  an  essential 
mistake,  one  concerning  the  object  of  the  contract, 
about  which  the  parties  have  exercised  their  wills  or  with- 
out which  they  would  not  have  been  in  accord,  that  is, 
upon  the  substance  of  the  thing,  not  understood  of  itself 
and  objectively,  but  as  it  was  thought  of  by  the  wills  of 
the  contractors.  There  can  be  no  doubt  that  such  an 
error  voids  consent,  the  effect  of  knowledge  and  free 
will,  and  that  it  therefore  voids  the  contract.  And 
the  nature  of  essential  mistake  cannot  fail  to  be  of  such 
effect,  be  it  excusable  or  not,  since  the  consent  is  lacking; 
but  the  inexcusableness  of  the  mistake  gives  the  other 
party  the  stronger  right  to  claim  damages.  We  have 
said1  that  fraud  and  mistake  differ  only  in  the  source 
from  which  they  arise  and  the  fundamental  basis  of  both 
of  them  is  the  false  belief.  To  have  fraud,  we  need 
the  false  belief  brought  about  in  the  mind  of  one  by  the 
deceit  or  trickery  of  the  other,  and  in  civil  law  we  need 
nothing  more.  It  is  based  on  the  intention  and  possi- 
bility of  harm,  because  fraud  produces  the  same  conse- 
quences as  mistake,  with  which  it  is  confusable. 

§  370.  Extent  of  Duress.  In  regard  to  duress  one 
should  consider  the  inexactness  of  Schliemann's  doctrine, 
which  starts  with  the  conception  that  duress  is  not 
really  a  voluntary  act  but  forces  a  declaration  which 
does  not  agree  with  the  internal  will.  In  Schliemann's 
mind,  there  is  no  consent  in  this  case,  and  the  contract 
is  void.  Now  this  doctrine  would  be  applicable  to 
the  two  cases  of  "vis  absoluta,"  in  which  one  becomes 
the  mechanical  instrument  in  the  hands  of  him  who 
uses  duress,  and  of  the  "vis  compulsiva,"  which  can  mo- 
mentarily take  away  knowledge  and  freedom.  In  such 
cases  there  is  an  external  similarity  to  will,  but  will  and 

1  Cf.  §  362  ante. 


MUST  BE  POSSIBLE  581 

consent  are  in  fact  lacking.  If  the  fear  is  not  such  as  to  over- 
shadow the  mind  and  to  destroy  absolutely  the  normal 
will,  consent  cannot  be  said  to  be  lacking,  and  yet  the 
contract  can  be  avoided  because  freedom  is  hindered  in 
its  exercise  by  injustice,  from  which  no  right  can  arise. 
In  such  a  case  the  principle  of  the  failure  of  consent  is 
not  applicable,  but  that  of  the  unjust  limitation  of  an- 
other's freedom. 

§  371.  Contract  Must  be  Possible.  The  possibility  of 
carrying  out  the  agreement  is  of  three  kinds,  physical, 
moral,  and  legal,  as  we  have  said  before.1  As  the  first 
kind  of  possibility  we  must  remember  the  old  saying, 
"Ad  impossibilia  nemo  tenetur."  Law  connotes  the  idea 
of  well-being  and  consequently  we  must  remember  the 
dictum  of  the  jurisconsult :  "Generaliter  novimus  turpes 
stipulationes  nullius  esse  momenti."  So  in  the  early 
Roman  law  books,  we  read  on  the  subject  of  conditions 
not  allowed  in  a  will,  "Quae  facta  laedunt  pietatem 
existimationem,  verecundiam  nostram,  et  contra  bonas 
mores  sunt,  nee  facere  nos  posse  credendum  est."  What- 
ever contract  has  for  its  object  an  immoral  action  or  a 
transgression  of  a  duty  is  void,  because  if  ethics  do  not 
include  all  of  law,  they  contain  a  great  part  of  it.  The 
legal  possibility  of  carrying  out  the  agreement  presup- 
poses an  alienable  right  and  a  person  who  can  dispose  of 
it.  Essential  personal  rights  cannot  be  alienated  or 
transferred  because  they  are  the  person  himself,  one  and 
incommunicable,  —  property  in  the  true  sense  of  the 
word.  We  can  add,  says  Rosmini,  that  in  order  to  trans- 
mit a  right,  we  must  be  able  to  loose  the  chains  by  which 
it  is  bound  to  us,  but  a  person  can  never  break  the  bonds 
of  his  own  personal  rights  because  he  cannot  will  self- 
destruction  or  annulment.  The  same  can  be  said  of  the 
complex  exercise  of  the  personal  powers  or  the  perpetual 

»C/.  §  350  ante. 


582  CONTRACT  AND  ITS  FORMS 

exercise  of  one  of  them,  because  their  loss  would  always 
mean  the  end  of  personality.  Only  the  resultants  of 
the  personal  powers  —  and  but  temporarily  —  are  cap- 
able of  transmission.  On  the  same  principle  we  see  that 
one  cannot  promise  another's  right,  although  he  consent 
to  it,  to  obtain  some  advantage  for  the  promisor.  A 
failure  of  performance  gives  rise  to  indemnity,  that  is 
always  due,  notwithstanding  the  refusal  of  the  third 
party,  if  the  promise  has  been  made  absolutely. 

§  372.  Consideration.  Consideration  ("causa")  is  an 
essential  requisite  to  the  validity  of  a  contract  and  of 
obligations  in  general  because  of  the  relation  of  cause 
and  effect.  There  is  no  juristic  bond  or  constraint  upon 
him  who  is  held  to  his  promise  to  give  or  to  do  with- 
out a  reason,  which  is  always  the  immediate  deter- 
minating cause,  and  as  such  cannot  remain  without 
the  law,  although  it  need  not  be  expressed  in  the 
contract.  In  law,  the  consideration  is  the  relation 
between  promises.  In  a  bilateral  contract,  the  considera- 
tion is  one  promise  regarded  in  its  relation  to  the  other. 
In  contracts  of  beneficence,  the  consideration  for  one  con- 
tractor lies  in  the  beneficence  itself,  and  for  the  other,  in 
the  act.  It  is  said  —  and  with  truth  —  that  the  consid- 
eration differs  from  the  object  in  this;  that  in  the  con- 
sideration the  promise  is  regarded  relatively,  and  in  the 
object  it  is  regarded  absolutely.  The  consideration 
must  be  bones  fidei,  because  legal  relations  cannot 
be  based  on  falsity  or  immorality.  This  requisite 
serves  to  show  whether  or  not  there  is  trickery.  It  can- 
not, as  Rosmini  says,  be  held  as  an  obstacle  to  the  trad- 
ing of  honest  men,  because  they  work  with  honest  motives 
and  have  no  repugnance  to  show  their  motives.  The  law 
should  not  hesitate  between  the  two  evils  of  not  pun- 
ishing trickery  and  deceit  or  of  wounding  the  suscepti- 
bility of  some  honest  people  in  peculiar  positions;  so 


INTERPRETATION  583 

much  better  is  it  for  the  latter  to  suffer  the  inconvenience. 
But  the  minor  ill  can  .be  avoided,  as, in  fact,  it  is  avoided, 
when  the  law  follows  the  maxim  that  the  consideration  is 
presumed  and  therefore  there  is  no  need  to  show  it.  In 
fact,  in  those  countries  in  which  there  is  such  a  requisite 
as  in  France  and  Italy,  there  is  no  talk  of  reform  on  this 
point,  and  there  seems  to  be  no  necessity  to  follow  the 
example  of  the  Austrian  legislation  in  the  contrary  rule. 
§  373.  Rules  of  Interpretation  of  Contracts.  In  pur- 
suing the  subject  of  contracts  in  general  a  step  further, 
we  must  say  a  word  about  the  rules  of  interpreta- 
tion and  their  fundamental  divisions.  The  object  of 
the  rules  of  interpretation  of  contracts  is  to  get  at  the 
understanding  of  the  intention  of  the  parties.  Now  the 
first  rule  (like  the  others)  is  based  on  the  knowledge  of 
the  Roman  jurisconsults,  the  logicians  and  geometricians 
of  law:  "In  conventionibus  contrahentium  voluntatem, 
potiusquam  verba  spectari  placuit."  If  the  intention  of 
the  contractors  is  not  clear,  the  meaning  of  the  words 
may  be  gathered  from  the  context.  When  the  mean- 
ing is  obscure  even  then,  a  court  must  interpret 
them.  "Incivile  est  nisi  tota  lege  perspecta,  una 
aliqua  eius  particula  proposita,  judicare  vel  respon- 
dere."  If  the  meaning  cannot  be  determined  by  the 
court,  the  object  of  the  contractors  must  be  considered ; 
"Iniquium  est  perimi  pacto  id  de  quo  cogitatum  non 
docetur."  If  the  object  is  obscure,  then  this  rule  may 
explain  the  contract:  "Semper  in  stipulationibus  et  in 
veteris  contractibus  id  sequimur  quod  actum  est,  erit 
consequens  ut  id  sequamur,  quod  in  regione  in  qua 
actum  est  frequentitur.  Quid  ergo  si  neque  regionis  mos 
apparent  quia  varius  fuit?  Ad  id  quod  minimum  est, 
redigenda  summa  est."  Ptolemy  adds  (and  there  is  no 
doubt  that  he  is  correct)  a  further  rule:  If  in  the  indi- 
cated ways  the  clear  intent  of  the  contract  cannot  be 


584  CONTRACT  AND  ITS  FORMS 

found,  one  should  give  the  words  the  sense  in  which 
they  have  some  reasonable  effect:  "Quoties  in  stipula- 
tionibus  ambigua  oratio  est,  commodissimum  est,  in 
accipi  quo  res,  qua  de  agitur,  in  tuto  sit." 

§374.  Division  of  Contracts.  A  philosophical  division 
of  contracts  was  first  made  by  Kant,  who  has  been 
followed  by  many  writers,  among  whom  the  most 
distinguished  are  Hegel  and  Ahrens.  It  is  founded 
on  the  substance  of  the  contracts  themselves  and 
develops  with  a  "principium  divisionis,"  which  is  not 
foreign  and  arbitrary,  as  those  generally  followed  by  leg- 
islators. Every  contract,  according  to  Kant,  has  for  its 
object  either  a  unilateral  (gratuitous  contract)  or  a  bilat- 
eral advantage  (the  contract  with  consideration),  or  is 
a  guaranty.  The  gratuitous  contracts  include  deposits, 
pledges,  bailments,  loans  for  use1,  and  gifts.  The  con- 
tract with  consideration  includes  exchanges  and  leases. 
Exchange  in  its  most  general  sense  is  divided  into  ex- 
change, properly  so  called,  sales,  and  loans  for  use;  leases 
include  contracts  of  hiring,  mandates,1  which  implies  the 
substitution  of  one  place  or  name  for  another.  If  it 
merely  means  the  substitution  of  place  and  not  of 
name,  it  has  the  commercial  notion  which  results  in  a 
contract  with  consideration.  The  contract  of  guaranty 
has  three  forms, pledge,  "fideicommissus,"  and  thegiving 
of  security.  This  classification  of  Kant,  although  it  has 
a  speculative  value,  is  useless  because  it  does  not  contain 
such  important  contracts,  as,  for  example,  that  of  part- 
nership; it  is  also  erroneous  in  that  part  in  which  it  con- 
fuses a  lease. 

§  375.  Trendelenburg's  Division  of  Contracts.  Less 
incomplete  but  equally  dialectic  in  substance  is  the 
division  of  Trendelenburg,  which  does  not  consider 
the  contracts  of  guaranty  as  a  third  kind,  but  ac- 

'C/.  §  365  ante. 


TRENDELENBURG'S  DIVISION  585 

cording  to  their  nature  adds  them  to  gratuitous  con- 
tracts and  those  with  consideration.  According  to 
their  form  contracts  are  (this  philosopher  teaches) 
verbal,  written,  and  implied.  The  simplest  form  is  where 
the  agreement  is  expressed  with  words  which  become 
precise  and  solemn  formulas  or  symbols.  A  written 
contract  can  acquire  great  force  through  judicial  classi- 
fication. In  implied  contracts,  the  agreement  is  shown 
by  acts  and  deeds.  The  tacit  contract  presumes  always 
a  manifestation,  no  matter  how  slight  the  agreement 
by  words  or  acts,  and  appertains,  therefore,  to  one  or 
the  other  of  the  above  categories.  As  to  content, 
Trendelenburg  goes  on,  contracts  have  for  their  object 
an  increase  of  force  or  the  removal  of  an  uncertainty  of 
rights.  The  former  are  generally  either  a  gift,  exchange, 
or  partnership,  and  form  a  continuous  and  progressive 
series,  raising  the  relations  from  a  unilateral  to  a 
bilateral,  and  then  to  a  communion  of  things  through  a 
complicated  business  arrangement  for  common  gain.  It 
is  clear  that  promise  and  counter  promise  are  of  a  lower 
order  than  an  agreement  to  carry  on  a  business  in 
common.  Contracts  of  gift  are  unilateral  and  benef- 
icent because  there  is  an  obligation  upon  only  one 
of  the  parties.  They  regard  either  the  donation  of  a 
property,  utility,  or  right,  constituting  "donatio,"  prop- 
erly so  called,  or  the  gift  of  the  use  of  something  (a 
bailment),  or  the  gift  of  gratuitous  services  (a  deposit 
or  mandate).  Contracts  of  exchange  are  bilateral  and 
not  gratuitous  because  there  are  mutual  obligations  on 
both  parties.  The  principal  kind  of  contracts  of 
exchange  can  be  called  exchange  proper,  the  gift  of  mer- 
chandise for  merchandise,  buying  and  selling,  or  the  ex- 
change of  merchandise  for  money,  the  exchange  of  things 
or  of  work  (the  use  of  properties  or  of  forces  as  well 
corporeal  as  spiritual  because  both  are  representative  of 


586  CONTRACT  AND  ITS  FORMS 

value),  and  loans  (the  use  of  money  exchanged  for 
money).  Among  the  bilateral  contracts  we  must  place 
insurance  contracts  because  the  parties  impose  upon 
themselves  reciprocal  obligation  under  given  conditions. 
The  partnership  contract  not  limited  to  single  acts  and 
counter  acts  is  naturally  more  general,  since  it  looks  to  a 
common  purpose  to  be  obtained  by  many  common  acts. 
These  contracts  differ  among  themselves,  because  the 
obligation  can  either  create  an  entity  distinct  from  the 
partners  or  not.  A  settlement  ("transactio")  defines  un- 
certain rights  by  reciprocal  renouncements  and  con- 
cessions between  the  parties,  and  shows  a  separation 
and  not  a  voluntary  increase  of  strength,  therefore  it 
interrupts  the  continuous  and  progressive  series. 

§  376.  Trendelenburg  s  Division  is  Exhaustive.  In 
the  above  classification,  the  principal  kinds  of  contracts 
are  considered,  though  it  is  true  that  emphyteusis  and 
leases  find  no  place  there,  but  it  cannot  be  denied  that 
these  two  are  bilateral  contracts  and  are  easily  reducible 
to  the  conception  of  exchange  or  of  trading  in  its 
widest  sense.  Emphyteusis  is  the  lease  of  a  farm  "in 
perpetuum,"  or  for  a  term  under  an  obligation  for  an 
annual  payment  in  money  or  in  kind.  The  leases  and 
loans  are  the  exchange  of  real  estate  or  the  payment 
of  money  (which  the  grantor  cannot  demand  back) 
for  a  rent  or  annual  payment  in  kind  or  otherwise. 
All  the  other  bilateral  contracts  which  look  to  an  ex- 
change (resolvable  in  the  "do  utdes,"  the  "do  ut  facias," 
the  "facio  ut  des,"  or  the  "facio  ut  facias")  can  figure 
in  the  classification  of  Trendelenburg.  It  is  true  that 
Trendelenburg  does  not  numerate  contracts  of  guaranty, 
but  he  speaks  of  pledge  and  bond.  Such  contracts  can 
be  reducible  to  "fidei-commissum,"  pledge,  and  mort- 
gage. The  division  of  Trendelenburg  is  like  that  of  Kant, 
but  has  an  inferior  dialectic  value.  Trendelenburg  him- 


TRENDELENBURG'S  DIVISION  587 

self  confesses  that  in  the  principal  series  of  contracts 
making  for  an  increase  of  strength,  there  is  a  progress 
from  the  unilateral  to  the  bilateral,  and  from  the  latter 
to  the  common  will  of  a  partnership.  The  progressive 
advance  is  stopped  by  the  contract  of  settlement,  which 
represents  a  separation  of  forces.  After  further  reflec- 
tion, however,  upon  Trendelenburg's  division,  we  must 
see  that  the  settlement  separates  in  the  sense  that 
it  defines  uncertain  rights  and,  in  proceeding  to  their 
definition,  results  in  an  increased  strength.  Confused,  un- 
certain, and  unlimited  rights  are  apparent  but  inefficient; 
true  strength  begins  with  limitations,  distinctions,  and 
certainty.  A  settlement  eliminates  obstacles,  avoids 
losses,  determines  the  rights  or  acquired  powers  of  the 
person,  who  feels  more  freedom  and  self-assurance  and 
finds  satisfaction  and  pleasure  in  the  contract.  We 
know  that  a  feeling  of  pleasure  is  brought  about  by 
an  increase  of  power  and  that  fatigue  or  pain  is  caused 
by  their  deficiency.  A  settlement  is  a  kind  of  bilateral 
contract  based  on  mutuality  and  exchange  and  as  such 
must  be  placed  before  that  of  the  partnership  and 
after  the  unilateral  contracts.  The  series  of  principal 
contracts  becomes  thus  continuous  and  progressive. 
All  the  contracts,  therefore,  considered  in  respect  to 
their  contents,  look  to  an  increase  of  force  in  due  con- 
formity to  their  origin.  Besides,  we  must  not  forget  that 
they  are  bound  with  the  impulse  towards  autarchy. 
With  this  addendum  the  classification  of  Trendelenburg 
seems  full  and  philosophical. 


588  FREEDOM  OF  CONTRACT 


CHAPTER  XIV 

FREEDOM  OF  CONTRACT  AND  THE 
CONTRACT  OF  LABOR 

FREEDOM  OF  CONTRACT,  ITS  LIMITS  AND  ITS  GUARANTY.  —  THE 
SOCIAL  MISSION  OF  PRIVATE  LAW.  — THE  EQUALITY  OF  THE 
PARTIES  IN  THE  CONTRACT  OF  LABOR.  — THE  SYSTEMS  THAT 
REGULATE  THE  LIABILITY  OF  THE  EMPLOYER  FOR  INDUSTRIAL 
ACCIDENTS. 

§  377.  Freedom  of  Contract  should  Not  be  License. 
Now  let  us  pass  to  the  examination  of  the  nature  of 
some  special  contracts  which  have  given  rise  in  our  time 
to  not  a  few  difficult  trials  and  discussions  in  the  economic- 
juristic  sphere.  A  contract  is  the  most  definite  expression 
of  the  "j  us  voluntarium"  and  freedom  of  the  individual.  If 
the  individual  is  free  and  can  dispose  of  the  things  which 
belong  to  him  in  the  ways  that  he  finds  most  convenient, 
it  is  a  logical  inference  that  he  has  free  rein  to  place  him- 
self in  relations  with  his  fellows  by  the  promise  of  objects 
or  useful  services.  Law  should  respect  the  freedom  of 
contract  up  to  the  point  where  it  becomes  license  and 
takes  a  position  opposed  to  the  principles  of  reason,  mor- 
ality, justice,  and  the  true  interests  of  society  which  is 
composed  of  individuals.  As  we  have  seen,  the  conception 
of  freedom  of  contract  (a  consequence  of  property  and  of 
the  freedom  of  man)  is  limited  by  other  conceptions  of  a 
higher  order  found  in  the  very  human  nature,  which  make 
for  the  happiness  and  necessities  of  the  great  ethical 
whole  represented  by  social  life.  It  is  not  only  the  right 
of  contract  which  is  thus  limited,  but  the  rights  of 
property,  family,  and  inheritance.  Private  law,  in  fact, 


PROTECTED  BY  LAW  589 

must  be  subordinate.  Hence  it  follows  that  private  law 
is  in  the  last  analysis  the  "jus  voluntarium."  It  is  clear, 
however,  that  individual  will  is  more  dominant  in  private 
than  in  public  law,  and  that  in  private  law  it  is  more 
dominant  in  property  and  in  contract  than  in  the  family 
relations.  But  no  one  has  seriously  contended  that  in 
the  sphere  of  contract,  the  limitations  placed  by  the  higher 
order  should  not  be  observed.  With  the  progress  of  time, 
the  freedom  of  individuals  develops  and  grows  larger, 
taking  possession  of  all  the  domain  which  belongs  to  it, 
and  substituting  itself  for  illegitimate  coercive  control. 
But  at  the  same  time  there  is  born  a  larger  comprehen- 
sion and  a  more  real  and  concrete  meaning  of  duties 
which  demand  conditions  possible  for  their  existence 
and  their  work. 

§  378.  Freedom  of  Contract  should  be  Protected  by  Law. 
So  the  reasonable  limits  of  freedom  grow,  while  free- 
dom itself  increases  and  gains  strength,  ceasing  to  be  a 
name  and  becoming  a  reality.  By  this  we  do  not  mean 
to  say  that  nature  changes.  Heretofore,  it  has  shown 
itself  in  its  true  aspect  when  the  statutes  allowed  it 
suitable  conditions  and  gave  it  real  guaranties  of  devel- 
opment. The  new  age  reclaims  not  an  abstract  and  nom- 
inal freedom  but  a  freedom  that  is  concrete  and  real.  The 
statutes  establishing  conditions  and  guaranties  are  not 
based  on  questions  of  organization,  that  is,  on  the  attain- 
ment of  a  general  purpose  through  the  whole,  but  pro- 
vide within  the  marked  boundaries  of  their  jurisdictions 
for  the  protection  of  existing  freedom.  The  protection 
should  not  be  understood  merely  as  the  purpose  or  effect 
of  the  agreement  of  two  wills  but  should  be  considered 
as  a  guaranty  of  the  contractual  freedom  of  one  party 
in  respect  to  the  freedom  of  the  other.  A  reform  of  pos- 
itive modern  contractual  law  is  only  justifiable  under 
two  heads;  in  the  name  of  the  increasing  correlation  of 


590  FREEDOM  OF  CONTRACT 

conditions  shown  in  the  great  increase  of  specialization 
and  individualization,  and  for  the  increase  of  the  actual 
conditions  of  freedom.  The  social  mission  of  all  private 
law,  of  which  Gierke  writes,  is  not  possible  except  in  the 
train  of  these  two  general  conceptions,  because  private 
law  is  formed  on  the  principle  of  the  freedom  of  individu- 
als always  limited  and  controlled  by  the  higher  order  of 
social  liberty.  If  this  principle  fails,  and  if  the  collective 
will  as  a  "jus  cogens"  is  put  in  its  place,  the  series  of  rela- 
tions by  which  the  individuals  hope  to  obtain  particular 
objects,  by  means  which  they  themselves  choose,  will  be 
entirely  destroyed.  Socialism  in  private  law  is  its  de- 
struction, because  there  is  no  private  law  where  the  indi- 
vidual personally  has  not  free  play.  Neither  can  there 
be  a  private  code  of  law  made  to  help  the  poor  classes 
against  the  overweaning  power  of  the  middle  class,  as 
appears  to  be  the  idea  of  Menger  in  Germany  and  of 
Salvioli  in  Italy.  This  kind  of  law  made  into  a  code 
would  be  essentially  privileged  class  legislation.  It 
could  have  no  place  in  a  mind  free  from  prejudices,  and 
would  be  injustice  and  not  law.  "Cuique  suum"  is  the 
slogan  of  justice,  and  therefore  a  civil  code  for  the  poor 
classes  cannot  be  allowed,  especially  when  the  equality 
of  all  citizens  is  proclaimed  in  public  law.  It  is  not  pre- 
sumable that  the  poor,  declared  capable  of  participating 
in  public  life,  are  at  the  same  time  inexperienced 
men,  innocent  creatures  who  fall  victims  to  the  greed  of 
the  rich  in  almost  every  relation  of  civil  life.  Such  a  code 
tends  to  sacrifice  freedom  to  material  equality  among 
men.  Now  there  is  no  need  to  confuse  these  two  distinct 
conceptions, — of  effective  freedom  and  material  equality. 
The  statutes  should  place  the  individual  in  a  state  where 
he  can  really  and  usefully  exercise  his  freedom  without 
giving  him  the  property  of  others  and  the  product  of 
their  industry. 


ECONOMIC  DURESS  591 

§  379.  Freedom  of  Contract  is  not  Absolute.  Con- 
tractual freedom  is  never  considered  as  an  absolute 
principle,  but  as  limited  by  motives  of  morality,  public 
order,  or  social  equity  in  codes  which  are  truly  indi- 
vidualistic. There  are  many  examples  of  equitable  con- 
trol :  the  action  of  rescission  in  cases  of  breach  of  contract ; 
the  avoidance  of  a  contract  of  redemption  after  more 
than  five  years  from  the  sale ;  of  agreements  for  interest 
in  agency  and  antichresis ;  certain  prohibitions  in  contracts 
relating  to  shipments  of  cattle,  by  which  the  common  car- 
rier obligates  himself  to  bear  more  than  a  moiety  of  the 
loss  of  beasts  through  chance  and  without  his  fault,  or  to 
share  to  a  greater  extent  in  the  loss  than  in  the  gain.  The 
legal  prohibitions  in  all  these  cases  tend  to  protect  free- 
dom itself  against  dangers  which  threaten  it  in  certain 
conditions  of  life.  A  clause  in  a  lease,  by  which  a  farmer, 
who  waives  his  right  to  be  relieved  of  rent  because  of  acci- 
dents foreseen  and  unforeseen,  must  pay  the  rent  even  if 
he  receives  nothing  from  the  property,  and  the  renuncia- 
tion of  remuneration  for  improvements  made  by  a  lessee 
in  cases  of  failure  where  he  has  to  return  the  property, 
could  be  made  void  for  the  same  reason.  Gianturco,  in  his 
book  "L'Individualismo  ed  il  Socialismo  nel  Diritto 
Contra ttuale,"  shows  that  these  two  prohibitions  would 
have  in  reality  the  same  object  as  those  already  recog- 
nized, which  we  have  mentioned  above. 

§  380.  Economic  Duress  in  the  Contract  of  Labor. 
Everyone  recognizes  the  serious  omissions  of  the  law 
on  the  subject  of  contracts  for  labor.  This  important 
contract,  the  object  of  bitter  criticism,  is  still  governed 
by  a  few  rules  derived  in  part  from  Roman  law  inappli- 
cable to  the  new  conditions  of  modern  times.  Certainly, 
the  contractors  in  a  hiring  contract  or  a  contract  for  labor 
are  not  in  a  state  of  equality,  because  on  one  side  there 
is  the  employer  with  plenty  of  capital  who  can  decrease 


592  FREEDOM  OF  CONTRACT 

or  suspend  work  and,  on  the  other,  there  is  the  operative 
who,  as  vendor  of  labor,  cannot  rest  from  his  trade,  with- 
draw his  offer  in  crises,  or  wait,  but  who  must  work  for 
wages  which  will  keep  him  alive  but  which  need  not  permit 
him  any  gain.  The  one  is  often  stubborn  in  his  pride; 
the  other  struggles  to  avoid  starvation.  Even  if  the 
wages  are  relatively  high  and  he  can  enjoy  a  decent  man- 
ner of  life,  the  employer  is  always  the  stronger.  Hence 
the  necessity  of  equalizing  as  far  as  possible  the  condi- 
tions of  the  parties  to  a  contract  for  labor,  not  by  attribut- 
ing to  the  operative  what  is  not  his,  not  by  reducing  the 
rights  of  capital  and  of  him  who  unites  and  directs  the 
elements  of  production,  not  by  the  establishment  of 
reasonable  wages  through  decrees  of  public  authorities, 
but  by  protecting  the  freedom  of  the  operative  and  giv- 
ing him  opportunities  of  development.  Among  such 
means,  we  can  count,  for  example,  the  prohibition  of  wage 
paying  in  kind  or  in  a  system  of  "truck"  by  which  the 
wage  is  decimated,  and  by  the  determination  of  reciprocal 
rules  and  duties  of  employer  and  operative  in  case  of  an 
omission  from  the  contract.  If  a  house  or  some  real 
estate  is  rented  with  an  omission  in  the  terms,  the  laws 
provide  and  establish  the  length  of  the  lease  by  a  pre- 
sumption; but  if  the  labor  of  a  thousand  operatives  is 
contracted  for  without  the  aforesaid  clause,  the  laws  are 
mute  and  the  contract  runs  ad  libitum.  Another  means 
is  the  limitation  of  the  penalties  which  theemployers  can 
impose.  The  laws  about  the  employment  of  children  and 
women,  Sunday  rest,  accidents,  employees'  insurance, 
and  industrial  regulations  have  a  distinct  influence  on 
labor  and  represent  a  series  of  equitable  limitations. 

§  381.  Employer's  Liability  must  be  Increased.  The 
principle  of  the  employer's  liability  for  negligence  in 
cases  of  industrial  accidents  which  exists  to-day  accord- 
ing to  existing  law,  must  be  amplified.  On  the  opera- 


BURDEN  OF  PROOF  593 

tive,  hurt  in  an  accident,  is  laid  the  burden  of  proving 
the  negligence  of  the  employer.  The  employer  should 
be  obliged  —  at  least  to  a  certain  extent  —  to  indemnify 
the  operative  for  injuries  which  are  really  the  trade  risks, 
received  by  chance.  The  employer  is  the  head  of  the 
industry,  and  as  such  takes  all  the  profits  and  advantages, 
while  the  workman  labors  in  the  interest  of  the  master, 
and  receives  a  fixed  wage.  It  is  only  just  that  the  em- 
ployer, because  the  gains  are  his,  should  bear  the  conse- 
quences of  injuries  inseparable  from  the  exercise  of  that 
branch  of  production.  No  one  should  be  enriched  through 
harm  or  injury  to  the  others  who  work  for  him.  We 
should  note  the  maxim:  "Quihabet  commoda  ferre  debet 
onera."  These  accidental  injuries  differ  from  unavoidable 
accidents,  which  are  inherent  in  the  business.  Unavoid- 
able accidents  are  foreign  to  the  management  of  the  busi- 
ness and  are  beyond  the  provisions  for  the  ordinary 
course  of  events.  We  can  easily  see  that  in  the  cases 
which  are  not  connected  with  the  management  of  the 
business,  there  can  be  no  liability  on  the  part  of  employer, 
whether  you  consider  him  as  the  author  of  the  injury 
or  whether  you  consider  him  as  the  head  of  the  business ; 
neither  can  he  be  held  responsible  for  the  negligence  of 
the  operative  who,  of  his  own  freewill,  has  placed  himself 
in  a  position  to  receive  the  harm  which  affects  other  per- 
sons and  the  capital  as  well  as  himself.  There  is  no  doubt 
that  such  increase  of  liability  should  be  regulated  by  law, 
which  could  not  be  waived  by  agreement.  Such  a 
system  does  not  shift  the  burden  of  proof,  because  it  is 
right  that  the  employer  who  alleges  the  contributory 
negligence  of  the  operative  or  the  unavoidable  accident 
as  a  ground  for  escaping  liability  should  be  made  to 
prove  it. 

§  382.      Shifting  of  Burden  of  Proof  will  not  Answer 
the  Problem  of  Employer's  Liability.     There  is  a  system 


594  FREEDOM  OF  CONTRACT 

which  hopes  to  realize  the  principles  of  equity  by  a 
simple  shifting  of  the  burden  of  proof  without  disturb- 
ing existing  statutes,  which  hold  the  employer  liable  for 
accidents  only  when  his  negligence  has  been  shown. 
By  the  shifting  of  the  burden  of  proof,  this  negli- 
gence is  presumed,  and  the  employer  must  show  that 
he  is  not  in  fault.  But  this  is  in  derogation  of  com- 
mon law,  founded  on  the  maxim  that  he  who  makes 
an  allegation  must  prove  it,  and  that  the  author  must 
prove  his  act  as  the  man  bound  by  a  covenant  must 
prove  the  exception  which  sets  him  free.  And  further, 
this  derogation  is  not  just  because  the  proof  is  not  easy 
for  the  employer,  since  the  operative  in  the  factory  is  in  a 
state  of  continuous  activity.  Fusinato,  in  his  monograph 
"Gl  'Infortuni  del  Lavoro,"  observed  that  this  presump- 
tion of  negligence  on  the  part  of  the  employer  does  not 
conform  to  reality,  giving  statistics  to  show  that  the  ma- 
jority of  industrial  accidents  are  caused  by  chance  or 
facts  whose  cause  it  is  not  possible  to  establish.  The 
state  of  the  locality  and  materials  is  often  so  changed  by 
the  accident  as  to  become  irrecognizable.  The  men  who 
could  testify  about  the  negligence  are  either  dead  or  in 
a  condition  in  which  they  cannot  testify,  if  they  are  not 
parties  to  the  action  themselves.  In  these  circumstances 
the  employer  cannot  get  evidence.  (Of  course,  it  is  true 
under  the  existing  rule  that  the  workman,  after  the  lapse 
of  months  without  means,  and  deserted  by  his  fellow- 
workmen  through  fear  of  a  loss  of  employment,  is  in  the 
same  predicament.)  It  is  clear  that  no  presumption 
of  negligence  should  be  allowed  against  the  employer 
only  because  he  is  rich,  and  it  is  not  just  to  presume 
the  master  negligent  since  the  operative  was  engaged 
in  the  business  and  therefore  was  in  no  wise  like  a 
passenger  on  a  railroad.  Fundamentally,  the  system 
of  shifting  the  burden  of  proof  modifies  the  present 


LIABILITY  NOT  CONTRACTUAL          595 

law  by  saddling  the  employer  with  the  injuries  not  only 
of  his  own  negligence  but  with  those  of  unknown  cause. 

§  383.  Employer's  Liability  is  not  Contractual.  Be- 
sides the  system  of  shifting  the  burden  of  proof,  there 
is  one  which  bases  the  liability  of  the  master  in  cases 
of  accident  on  the  contract  itself,  by  which  he  is 
bound  to  provide  all  the  necessary  precaution  to  pro- 
tect the  operative.  This  contract  creates  relations  of 
dependence  and  subordination  on  the  part  of  the  opera- 
tive to  which  the  duty  of  guaranteeing  protection  on  the 
part  of  the  master  corresponds.  It  is  not  the  negligence, 
say  the  upholders  of  this  system,  that  causes  the  liability, 
but  the  agreement.  The  operative  must  only  show  the 
contract  in  the  case  of  an  accident;  the  master  must 
prove  that  he  was  not  in  fault.  Now  we  must  show  that, 
admitting  the  fundamental  idea  of  this  system,  the 
master  is  bound  by  the  contract  to  make  all  provisions 
necessary  for  the  protection  of  the  life  and  health  of  his 
operatives;  but  that  is  the  extent  of  his  duty.  If  such 
provisions  have  been  made  and  followed,  but  nevertheless 
the  accident  happens,  the  master  is  not  responsible  and 
is  not  bound  to  give  indemnity  for  the  accident  of  unknown 
origin.  From  the  contractual  nature  of  the  master's  obli- 
gation, there  is  brought  about  no  shifting  of  the  burden 
of  proof,  because  the  contract  is  not  for  the  rent  of  a  man 
but  for  his  work,  which  cannot  be  considered  as  a  machine 
that,  leased,  must  be  returned  after  use  as  it  was  or  with 
compensation  for  wear  and  tear.  There  is  neither  obliga- 
tion nor  demand  to  restore  the  person  of  the  operative, 
but  he  wishes  payment  and  looks  to  the  contract  as  evi- 
dence of  his  right.  In  lease,  transportation,  and  bailment, 
the  real  author  of  the  contract  demands  the  object  and 
he  who  is  bound  proves  the  event  which  frees  him  from 
responsibility,  but  in  contracts  for  work,  in  cases  of  acci- 
dents, the  person  is  not  demanded  back. 


596  FREEDOM  OF  CONTRACT 

§  384.  Employer's  Liability  Question  can  be  Settled 
by  Obligatory  Insurance.  Accepting  the  principle  on 
which  for  equitable  reasons  the  system  of  full  liability 
is  based,  there  is  no  serious  objection  to  not  enforcing  the 
obligatory  accident  insurance  of  operatives  by  the  em- 
ployer, since  he  takes  all  the  profit  of  the  industry,  and 
therefore  must  bear  the  consequences  of  chance  events 
or  trade  risks.  The  law  has  the  power  to  force  those 
engaged  in  a  trade  to  insure  the  payment  of  an  indem- 
nity of  a  definite  amount  to  the  operative  killed  or 
wounded  as  the  result  of  an  accident  occurring 
in  the  course  of  the  work.  If  the  accident  happens 
through  the  malice  or  negligence  of  the  employer, 
the  operative  is  entitled  not  only  to  the  indemnity 
insurance,  but  to  the  necessary  sum  to  compensate 
for  the  damage,  under  the  rule  of  common  law.  It  is 
clear  that  no  indemnity  is  due  the  operative  for  his 
malice  or  negligence,  or  for  unavoidable  accidents. 
Through  the  insurance,  the  risks  are  divided  among 
a  great  number,  and  thus  when  the  accident  happens 
the  masters  are  not  obliged  to  disburse  large  sums 
and  have  lawsuits  with  their  employees.  The  system 
of  liability  creates  a  state  of  war  between  the  em- 
ployees and  employers;  insurance  institutes  a  reign  of 
peace.  Obligatory  insurance  implies  a  new  element 
in  cost  of  production  bringing  about  an  increase  in  price 
of  the  objects  falling  chiefly  on  the  consumer  and  some- 
what upon,  the  producers  themselves.  On  this  point, 
we  must  have  no  illusions.  And  the  law,  in  determining 
the  measure  of  damages  to  be  paid  by  the  employers  for 
insurance,  should  take  accurate  thought  of  the  real 
conditions  of  the  production  and  the  industries  of  the 
country.  It  is  necessary  above  all  to  see  if  the  obliga- 
tion can  be  placed  at  all  and  within  what  limits  in  a 
particular  situation.  There  is  not  much  foundation  for 


EMPLOYER'S  LIABILITY  597 

the  fear  that  obligatory  insurance  will  make  the  em- 
ployers negligent  in  adopting  provisions  and  precautions 
for  the  employment  of  labor,  because  the  insurance 
companies  are  none  too  willing  to  pay  indemnity  and 
make  payment  only  when  there  can  be  no  doubt  that 
there  has  been  no  contributory  negligence  of  the  master 
contributing,  as  Ferraris  has  shown  in  his  book  on  this 
theme. 

§  385.  Laws  of  Employer's  Liability  should  be  Both 
Preventive  and  Remedial.  The  laws  should  not  be 
limited  to  the  reparation  of  damage  but  should  also 
take  forethought  to  prevent  it,  establishing  the  general 
rule  on  which  special  regulation  could  be  based,  imposing 
necessary  precautions  in  regard  to  the  health  and  life  of 
operatives  and  to  prevent  accidents.  Twofold,  there- 
fore, is  the  duty  of  the  laws:  to  foresee  and  prevent 
the  accident,  and  to  insure  reparation  and  help  when  the 
injury  has  happened. 


598  USURY 


CHAPTER  XV 
USURY 

INTEREST  AND  ITS  LIMITATIONS. —  FREEDOM  OF  INTEREST.— 
USURY  AND  ITS  METHODS.  —  USURY  AS  A  FORM  OF  CIVIL  WRONG 
AND  THE  METHODS  OF  FIGHTING  IT.  —  USURY  AS  A  CRIME.  — 
CRITICISM  OF  THE  THEORY  OF  STEIN.  —  THE  SPECIAL  FEATURES 
OF  THE  CRIME  OF  USURY.  —  LAW  AND  LIFE. 

§386.  Interest  is  Legitimate.  Interest  is  profit  gained 
by  lending  others  capital;  it  has  been  regarded  from 
a  biased  point  of  view  and  has  been  held  in  ill-repute 
for  historical  causes  and  through  moral,  philosophical, 
and  religious  prejudices.  The  severity  of  the  Twelve 
Tables,  which  has  been  depicted  in  "The  Merchant 
of  Venice,"  has  not  been  the  ultimate  reason  for  the 
abhorrent  discredit  with  which  it  has  been  regarded. 
Loans  to  the  rich  for  objects  of  luxury  and  dissipation, 
and  those  to  the  poor  to  obtain  money,  especially  in 
the  time  of  barbarian  devastations,  and  the  precepts  of 
charity  in  the  Old  and  New  Testaments  which  pre- 
scribed succor  for  the  poor  and  forbade  interest,  have 
had  much  influence  on  the  minds  of  the  people  and  the 
legislature.  To  the  impulses  of  sentiment,  to  the  voice  of 
fraternal  love  is  added  scientific  authority  represented 
by  the  celebrated  reasoning  of  Aristotle  on  the  natural 
unproductiveness  of  money,  which  was  accepted  by  the 
jurisconsults  who  first  taught  "usurae  vicem  fructum 
pertinent,"  but  ended  by  affirming  that  "usura  fructu 
non  est,"  since  it  was  not  derived  "ex  ipso  corpore," 
but  from  the  money  itself. 


INTEREST  599 

§  387.  Recognition  of  the  Legitimacy  of  Interest.  The 
more  complex  needs  of  life,  the  growth  of  trade,  the 
increase  of  commerce,  and  the  gradual  development 
from  an  economy  of  nature  to  economy  of  finance 
brought  about  the  legal  recognition  of  pawn-shops, 
state  offices,  as  well  as  that  growing  out  of  the  loans  of 
traders  in  business  There  was  introduced  a  kind  of 
justification  of  interest,  not  of  its  own  virtue,  but  as  a 
compensation  for  the  non-user  of  capital  through  the 
conception  of  "damnum  emergens"  and  "lucrum  ces- 
sans."  Legal  interest  on  a  judgment  was  not  looked 
upon  with  the  same  dread.  Kings  sold  to  the  Hebrews 
and  Lombards  the  monopoly  in  the  State  of  lending 
money  at  high  interest,  but  were  always  ready  to  con- 
fiscate their  goods  at  every  popular  demonstration 
against  usurers,  thus  making  a  double  profit. 

§388.  Interest  fully  Recognized  at  Law.  Finally  the 
exception  became  the  rule  and  interest  was  allowed 
in  an  age  in  which  the  object  of  lending  was  not  to 
preserve  or  consume  money,  but  to  invest  it  as  capital ; 
thus  the  seed  is  distinguished  from  the  fruit.  The 
seed  value  is  the  value  which  money  has  as  merchan- 
dise, that  is,  the  expense  of  coinage;  the  second  is 
bound  up  with  the  use  of  money  as  capital.  This  dis- 
tinction teaches  that  the  justification  of  interest  does 
not  lie  only  in  the  amount  of  capital.  The  discovery  of  a 
mine,  for  example,  can  lessen  the  price  of  money,  and 
at  the  same  time  interest  can  increase  through  the  insuffi- 
ciency of  capital.  In  our  day,  the  conception  of  physi- 
cal fecundity  is  distinct  from  that  of  economic  pro- 
ductivity, and  therefore  we  can  see  that  money,  although 
it  is  not  fecund  physically,  is  economically  productive. 
Interest  (the  civil  fruit)  is  justified  by  the  undeniable 
principles  of  economico-juristic  reason  because  it  is  the 
compensation  for  the  use  of  another's  capital.  It  is  also 


600  USURY 

the  price  of  risk.  The  return  of  the  capital  is  a  direct 
consequence  of  the  respect  due  to  individual  property. 
About  this  there  can  be  no  doubt. 

§  389.  Usury  can  be  Legally  Forbidden.  But  if  the 
interest  is  allowed  in  such  an  age,  one  so  nearly  our 
own,  usury  was  forbidden.  In  other  words,  high 
interest  was  not  allowed.  A  limit  was  placed  upon 
the  interest  rate.  Limiting  laws,  inspired  by  the  spirit 
of  charity,  are  aimed  against  a  high  interest  which 
worries  and  harasses  the  largest  and  unhappiest  class 
of  debtors  and  represents  an  age  in  which  communi- 
cation between  men  was  difficult  and  when  there  were 
great  differences  among  the  laws  of  different  nations. 
But  when  the  interest  rate  is  limited,  capital,  too,  suffers 
a  limitation  which  should  not  be  placed  thereon.  It  is 
deprived  of  its  full  scope  and  has  not  that  self-govern- 
ing characteristic  of  to-day  when,  by  virtue  of  credit, 
capital  can  almost  be  separated  from  its  owner.  With 
the  increase  of  communications  and  the  decrease  of 
contrasts  between  the  laws  of  nations,  with  the  de- 
velopment of  trade  and  the  increase  in  quantity  and 
mobility  of  capital,  it  is  no  longer  possible  to  enforce 
laws  of  limitations  (now  abandoned  by  the  greater 
number  of  progressive  governments).  A  new  principle 
seems  to  be  making  its  appearance  generally.  And 
though  hardly  clear  as  yet,  it  is  on  the  way  to  relegate 
to  the  limbo  of  the  other  sophistries  the  conception  of 
the  limitation  of  the  interest.  True  and  complete  free- 
dom becomes  a  fact  with  the  freedom  of  exchange  and 
commerce.  Money  is  merchandise  as  much  as  any 
chattel  and  should  not  be  subjected  to  a  law  of  maxi- 
mum. The  jurists  of  the  old  school  defended  the  alleged 
right  of  limitation  by  the  State  by  holding  that  the 
chattel  in  coins  was  a  special  property  since  money  was 
the  means  of  exchange.  If  the  State,  they  said,  estab- 


INTEREST  LAWS  601 

lishes  the  denominations  in  value  and  gives  the  legal 
quality  of  a  means  of  exchange  to  money,  it  can  restrict 
its  use  without  thereby  hindering  the  chattel  of  which 
the  coin  is  made,  being  the  subject  of  barter  and  sale. 
They  did  not  understand  the  nature  of  money  and  the 
State's  duty  of  coinage,  and  they  made  no  distinction 
between  creation  and  certification.  Though  the  State 
coins,  it  does  not  create  the  value  of  money  which  is 
intrinsic  and  preexistent.  It  merely  certifies  the  quality 
and  weight  in  order  to  give  it  recognition  as  a  uni- 
versal means  of  exchange.  It  could  not  abandon  coinage 
to  private  competition  because  the  law  of  Gresham  would 
be  immediately  manifest,  that  is,  that  bad  money  is 
more  apt  to  circulate  than  good,  and  drives  the  good 
from  circulation.  These  are  the  only  reasons  for  statu- 
tory enactments  in  this  regard.  There  is  no  creative 
virtue  in  the  State,  and  therefore  the  reasoning  of  these 
jurists  does  not  apply.  Neither  can  we  say  that  it 
is  possible  to  fix  a  priori  the  maximum  of  interest 
because  the  fruits  of  money  are  essentially  most  change- 
able, being  ruled  in  every  case  by  the  correlation  of  many 
facts,  among  which  we  must  notice  the  length  of  the 
loan,  the  security,  and  the  quality  and  quantity  of  the 
risk. 

§  390.  Abrogation  of  Legal  Interest  Laws.  With  the 
abrogation  of  the  limiting  laws  in  many  modern  coun- 
tries, usury  has  remained  free  and  unpunished  by  their 
codes.  It  has  become  more  extensive  and  immoral, 
until  it  is  the  terrible  plague  of  all  times  and  places. 
Its  extension  and  deep  corruption  are  explained  by 
the  developments  to  which  economic  life  is  subject. 
Evolution  means  a  growing  quantity  of  exchangeable 
goods,  a  progressive  development  of  credit,  an  enormous 
development  of  needs,  and  great  progress  in  intelligence. 
Evolution  is  confused  with  modern  civilization,  which, 


602  USURY 

though  it  is  seen  under  the  economic  aspects  just  men- 
tioned, does  not  in  general  make  for  great  progress  and 
morality.  It  is  a  fact  that  the  mentality  goes  rapidly 
forward  while  morality  remains  the  same  or  varies  very 
little.  Briefly;  the  more  new  forms  that  economic  life 
includes,  the  more  complicated  it  becomes,  the  greater 
needs  and  desires  it  causes,  and  the  more  intimate  rela- 
tions it  gives  rise  to;  just  so  much  more  will  usury  be- 
come rampant,  acquiring  new  attractions,  new  material 
and  a  greater  sphere,  and  at  the  same  time  will  become 
more  cautious  and  deceptive.  Now  public  opinion ,  which 
has  in  every  age  and  every  country  demanded  a  defense 
against  usury,  is  in  a  terrible  dilemma  due  to  the  contra- 
diction between  the  impunity  of  usury  and  the  great 
progress  of  this  frightful  plague. 

§  391.  Interest  is  Economic.  Is  the  contradiction 
so  generally  deplored  real?  Does  usury  besides  being 
immoral  offend  the  law?  At  this  point  it  is  necessary 
to  remember  that  the  substance  of  law  is  eudemono- 
logical  and  in  a  great  part  economic.  Now  economics 
teach  that  a  loan  should  entail  a  profit.  If  the  debtor 
does  not  invest  the  capital  lent  and  cannot  receive 
interest  and  principal  from  the  investment,  he  loses  by 
his  loan.  Willing  or  unwilling,  a  debt  always  entails  a 
dependence  of  the  debtor  on  the  creditor,  but  he  can 
easily  acquire  the  means  of  liberation  and  change  his 
position,  if  he  is  intelligent  enough  to  profit  by  the 
use  of  the  loan.  It  is  clear  that  a  loan  is  capable  of 
such  beneficial  results  only  when  it  is  real,  and  not 
fictitious.  Rational  law  holds  there  can  be  no  debt 
without  a  corresponding  value  given  (unless  we  want 
to  call  some  obligations  of  indemnity,  decreed  by 
law,  by  such  a  name).  From  this  principle  comes  the 
origin  of  some  "actiones"  or  "condictiones,"  as  the  "con- 
dictio  sine  causa,"  "causa  data,"  "causa  non  secuta," 


METHODS  603 

"actio  de  in  rem  verso,"  "exceptio  non  numeratae 
pecuniae,"  and  the  "laesio  enormis."  All  these  actions 
presuppose  the  failure  or  inadequacy  of  the  value 
received.  Law  must  always  be  based  on  the  nature  of 
things  and  on  the  reality  of  economic  relations.  If  it 
is  not  so  based  it  is  no  longer  law,  but  rather  the  direct 
opposite  of  law,  wrong;  neither  can  it  be  said  that  this 
conception  of  law  is  foreign  to  reason,  which  should  be 
its  essence,  because  the  nature  of  things  and  the  reality 
of  relationship  are  connoted  by  "recta  ratio." 

§  392.  Methods  of  Usury.  Usury  may  be  an  iso- 
lated act  or  it  may  be  a  habit  of  profiting  from  the 
folly,  inexperience,  necessity,  or  enthusiasm  of  the 
debtor,  raising  a  small  and  reasonable  obligation  to  a 
large  loan,  by  making  new  agreements  more  stringent 
and  for  a  shorter  term  according  to  his  financial  con- 
dition. The  usurious  creditor  grows  rich  on  the  large  rate 
of  interest,  and  upon  the  repayment  of  the  loan,  without 
investing  an  equal  sum,  he  increases  his  capital.  He  gains 
a  wage  through  the  work  of  the  debtor  who  can  never 
free  himself  from  this  slavery  created  in  the  name  of 
liberty,  as  Stein  has  said.  The  creditor,  by  high  interest, 
receives  more  than  the  capital  lent,  while  he  forced  the 
debtor  to  continue  to  borrow  from  him  in  order  to  pay 
the  interest ;  from  one  hundred  dollars  given  on  interest 
at  a  given  time  he  receives  twenty  dollars  as  annual 
interest  and  perhaps  a  thousand  dollars'  capital  after 
three  or  four  years.  This  is  usury  of  interest  alone  and 
nothing  else,  but  there  is  also  a  usury  of  capital  because 
a  money-lender  realizes  on  the  debtor's  personal  prop- 
erty, capital,  friendship,  and  affections,  which  in  moments 
of  coercion  can  have  a  monetary  value.  A  money- 
lender, after  receiving  a  high  and  scandalous  interest 
two  or  three  times  the  capital  lent,  makes  a  further 
gain  at  the  expense  of  honest  creditors  because  he 


604  USURY 

alone  is  in  a  position  to  know  and  choose  the  day  best 
for  a  bailment  or  levy,  obtaining  thus  an  advantage  by 
his  bad  faith. 

§  393.  Two  Kinds  of  Usury,  Simple  and  Seductive. 
Usury  can  be  simple  or  it  can  be  underhand  and 
seductive.  Even  when  usury  is  simple  and  the  debt 
is  not  provoked  by  a  thousand  different  schemes,  it  is 
always  a  debt  without  a  corresponding  loan,  or  a  debt 
enormously  disproportionate  to  the  loan,  prohibiting 
the  accumulation  of  the  capital,  absorbing  income  and 
possessions,  destroying  liberty  and  financial  independence, 
and  affecting  the  honor  of  the  men  in  its  toils.  For 
even  simple  usury  begins  with  a  malevolent  study  of 
the  powers,  character,  and  situation  of  the  debtor  and 
involves  the  slow  destruction  of  his  wealth.  With  the 
aid  of  a  high  interest  rate,  with  the  constant  increase 
of  capital,  with  the  advantage  of  bad  faith,  it  re- 
ceives three  or  four  times  the  value  of  the  loan,  as 
does  the  deceptive  usury.  It  uses  the  same  means  of 
pressure  and  threats  as  the  latter.  At  first,  it  affects 
a  tenderness  for  the  poor  debtor,  until  it  has  him 
well  within  its  grasp,  then  it  shows  him  a  hardened 
visage  and  finally  adopts  its  true  colors.  Usury  ex- 
cludes kindness  as  kindness  excludes  usury;  without 
a  certain  brutality,  without  a  certain  animal  ferocity, 
one  cannot  become  a  usurer.  Any  kind  of  usury 
is  a  close  and  ferocious  calculation.  The  marks  of 
usury  are  generally  the  same  in  the  case  of  simple  or 
hidden  usury;  in  both,  a  loan  is  made  presumably  out 
of  kindness  by  third  parties  who  are  in  secret  accord 
with  the  usurer  for  a  short  term  upon  an  assignment 
of  wages,  a  pledge,  a  sale  of  chattels  or  crops  in  the 
ground,  or  of  products  before  harvest.  Stein  points 
out  that  usury  to-day  always  seems  to  tend  towards 
hidden  usury  and  to  adopt  all  the  forms  and  activities 


CAN  BE  STOPPED  605 

of  its  true  nature.  It  extends  from  the  cities  to  the  vil- 
lages and  the  countryside;  the  reason  of  this  phe- 
nomenon must  be  found  in  that  evolution  of  modern 
economic  lie  that  we  have  spoken  of  above.1 

§  394.  Usury  not  to  be  Confused  with  High  Interest. 
If  usury  consists  in  a  debt  without  a  corresponding 
loan,  it  is  clear  that  it  has  no  relation  to  the  interest 
rate  which  is  the  effect  merely  of  risk  and  scarcity  of 
capital.  A  loan  where  the  risk  is  great  is  not  usury, 
though  usury  is  always  a  loan  without  security.  In 
the  first,  there  is  a  real  loan  and  a  commercial  activ- 
ity and  calculation  of  interest  in  the  enterprise.  In  the 
second,  there  is  a  debt  without  a  loan  and  no  activity 
on  the  part  of  the  creditor  but  a  keen  awaiting  for  the 
ruin  of  the  debtor.  High  interest  has  been  correctly 
likened  by  Stein  to  a  doctor  who  makes  high  charges, 
and  usury  is  like  a  wild  beast  on  the  field  of  financial 
activity.  From  this  it  follows  that  the  legislator 
who  wants  to  destroy  usury  should  not  take  up  the' old 
method  of  limiting  the  interest  rate,  because  freedom 
of  interest  is  the  consequence  of  true  economic  and  legal 
principles.  A  great  part  of  the  criticism  of  the  usury 
laws,  that  we  hear  to-day,  is  aimed  more  at  these  laws  of 
limitation  than  at  any  particular  civil  or  penal  law 
against  usury  itself. 

§  395.  Usury  can  be  Stopped:  It  is  a  Question  of  Price. 
From  what  has  already  been  said  we  can  readily  infer 
that  both  simple  and  seductive  usury  are  illegal,  for  the 
law  should  be  founded  on  the  reality  of  economic  rela- 
tions. There  seems  no  doubt  that  such  an  offense  is  a 
civil  injury  against  which  principal  means  of  defense  in 
jure  is  the  "condictio  indebiti"  or  the  "exceptio  non 
numerates  pecuniae."  The  special  action  and  defense, 
especially  at  the  time  of  the  payment,  strike  usury 

1  Cf.  $  386  ante. 


606  USURY 

at  a  vital  point.  We  can  easily  see  that  the  law 
must  allow  presumptions,  and  parol,  and  circumstantial 
evidence,  if  it  wishes  to  make  good  these  means  of 
defense.  And  in  this  case,  harmful  results  too  may 
be  brought  upon  the  bona  fide  creditor.  The  change 
in  the  system  of  evidence  would  be  great;  we  must 
frankly  confess  it.  The  practical  question  always  re- 
mains, which  can  receive  different  answers  according 
to  the  different  moral  conditions  of  nations:  Is  it  wise 
to  change  such  a  system  with  the  possible  harm  to 
credit  in  order  to  punish  usury  in  particular  cases,  or  is  it 
better  to  let  usury  alone  in  order  not  to  alter  the  rules 
of  evidence  or  disturb  the  public  confidence?  We  may 
as  well  admit  that  no  system  in  this  world  can  be 
perfect  and  free  from  abuse.  At  one  moment  trickery 
enjoys  the  protection  given  to  honesty,  and  escapes 
under  the  protection  of  the  law,  and  now  honesty  is 
wounded  by  the  provisions  adopted  against  dishonesty. 
Here,  as  in  other  branches  of  the  social  and  juristic 
sciences,  it  is  well  to  see  on  which  side  the  scale 
inclines,  in  other  words,  what  proportion  the  advan- 
tages bear  towards  the  evils,  and  be  governed  there- 
by. When  statutes  allow  such  means  of  defense  for 
the  debtor,  they  cannot  deny  them  to  honest  creditors, 
otherwise  the  usurers  would  make  their  money  answer 
for  the  usurious  loan.  The  final  immoral  and  unjust 
privilege  of  the  usurer,  that  is,  the  preference  grow- 
ing out  of  a  bailment  would  fail,  were  usury  proved. 
There  is  no  use  in  introducing  bankruptcy  again 
(proposed  by  Stein,  with  the  intention  of  depriving 
the  usurer  of  a  method  of  grave  extortion)  in  which 
all  the  creditors  join  and  the  debtor  is  deprived  of  his 
goods  which  are  given  to  a  trustee,  because  bankruptcy 
which  deprives  the  miserable  debtor  in  good  faith  through 
the  hardness  of  personal  coercion  has  no  excuse  for  exist- 


A  CRIME  607 

ence  to-day,  when  imprisonment  for  debt  is  abolished. 
The  exemption  of  salaries  and  pensions  is  another  civil 
remedy  against  usury.  Let  us  disregard  the  other 
remedies  of  Stein,  which  include  the  invalidity  of  a 
sale  of  crops  before  harvest  and  the  prohibition  of 
recognition  of  a  second  board  or  lodging  bill  when  the 
first  is  not  satisfied.  The  invalidity  of  the  sale  of  prod- 
ucts before  harvest  can  well  be  included  among  the 
means  of  nullifying  usurious  contracts  and  is  logical, 
but  it  is  harmful  to  the  freedom  of  the  trade.  And 
harmful,  too,  to  freedom  of  credit  is  the  prohibition 
against  the  validity  of  a  second  lodging  bill  when  the 
first  is  not  satisfied,  though  this  is  frequently  the  first 
step  in  usury  in  some  countries. 

§  396.  Is  Usury  a  Crime  ?  Now  we  come  to  the 
question:  Is  usury  only  a  form  of  civil  injury  or  can 
it  be  considered  as  a  crime?  The  modern  school  of 
penal  law,  writes  Carrara,  which  has  placed  at  the  base 
of  coercive  legislation  the  solemn  principle  that  no  human 
act  can  be  punished  if  not  immoral  or  destructive  of 
rights,  is  not  aggressive  in  protecting  society.  Usury 
measured  by  this  criterion  should  not  be  made  a  crime, 
because  the  payment  of  exorbitant  interest  is  freely 
consented  to,  and  there  is  no  right  to  overthrow  or  pun- 
ish what  everyone  is  free  to  do  or  not.  Without  wish- 
ing to  go  into  the  fundamentals  of  punishment  it  appears 
to  us  that  the  doctrine  of  social  security  considered 
by  itself  is  not  opposed  to  the  criminality  of  usury, 
because  the  harm  which  usury  does  to  society  in  hinder- 
ing the  collection  and  development  of  capital  is  great, 
and  renders  more  artificial  and  more  cruelly  dishonest 
the  attempts  of  bad  faith  and  destroys  the  economic 
freedom  and  independence  of  individuals,  as  we  have 
said  before.1  There  is  no  freedom  of  consent  when  the 

1  Cf.  §  389  ante. 


608  USURY 

debtor  through  inexperience  or  necessity  of  life  is  forced 
to  accept  an  outrageous  agreement.  It  seems  that 
it  was  true  yesterday  as  it  is  to-day  that  the  plague  of 
usury  brings  panic  to  the  minds  of  the  people,  who  de- 
mand penalties  against  usury.  All  laborers  and  farmers, 
the  military  and  the  clericals,  landowners  and  nobles, 
fear  usury  and  with  good  reason.  It  is  necessary  to 
recognize  that  the  fear  in  all  these  classes  is  the  effect 
of  daily  sad  experiences.  Usury  is  not  a  negligible  factor 
in  the  increase  of  suicide,  and  usury  inflicted  upon  the 
proletarian  fosters  a  savage  hate  of  capital  and  becomes 
a  true  social  danger. 

§  397.  Stein's  Distinction  of  the  Two  Kinds  of  Usury. 
Stein  had  tried  to  prove  that  if  a  creditor  of  whom  a 
debtor  borrows  of  his  own  free  will  takes  a  dispropor- 
tionate gain  from  the  disorder  of  the  latter's  finances, 
poverty,  prodigality,  or  lack  of  foresight,  he  is  guilty 
of  an  act  of  simple  usury  which  falls  under  the  jurisdic- 
tion of  civil  law.  If,  however,  a  creditor  in  any  way  pro- 
motes a  debt  maliciously  to  his  own  advantage  and  the 
disorder  in  the  finances  of  the  debtor,  he  is  guilty  of  the 
crime  of  usury  which  is  a  kind  of  extortion.  Usury 
threatens  and  forces  the  victim  into  a  state  of  financial 
ruin  in  order  to  obtain  an  unjust  advantage.  Usury 
is  extortion  with  the  intent  of  getting  an  acknowledg- 
ment of  a  debt  owed  without  a  corresponding  loan, 
by  making  short  terms  and  threatening  exposures  in 
case  of  failure  of  payment  and  taking  advantage  of 
the  social  position  of  the  debtor.  To  us  it  seems,  as 
it  seemed  to  Andreani  in  "Delle  Leggi  Contro  L'Usura," 
that  the  distinction  of  Stein  is  without  foundation, 
because  usury  of  any  kind  involves  fraud  and  injury. 
Even  simple  usury  includes  trickery,  because  it  presup- 
poses the  desire  of  obtaining  an  illegal  profit  from  the 
exceptional  position  of  a  debtor  who  is  forced  to  assume 


STEIN'S  DISTINCTION  609 

a  debt  without  a  corresponding  loan,  or  one  out  of  all 
proportion  to  the  loan,  consenting  through  inexperience, 
necessity,  or  enthusiasm,  and  subscribing  an  unfortun- 
ate agreement  to  his  own  moral  and  financial  perdi- 
tion; it  is  a  Satanic  agreement  of  which  either  folly  or 
necessity  is  the  occasion.  The  dishonesty  of  receiving 
profit  from  a  fictitious  loan  is  an  essential  and  criminal 
element,  and  the  ruin  of  the  debtor  is  the  conse- 
quence. We  can  affirm  that  the  characteristics  of 
extortion  are  not  foreign  to  simple  usury,  if  we  follow 
the  penal  definition  of  Stein.  There  is  extortion  when 
threats  of  a  future  misfortune  are  made  for  gain,  and 
the  victim  is  forced  to  give  something  at  once,  or  when 
he  is  threatened  with  an  immediate  misfortune  to  obtain 
a  promise.  Extortion  is  aimed  at,  gaining  an  undue 
profit  through  threats  of  great  injury.  In  this  sense 
the  usurer  can  be  guilty  of  extortion  whether  the 
debtor  borrows  of  his  own  free  will  or  whether  the 
usurer  artfully  provokes  a  debt  and  creates  the  causes 
of  his  financial  embarrassment.  A  creditor  in  simple 
usury,  to  get  money,  threatens  futile  ills  and  forces  the 
debtor  to  give  something  in  pawn  or  to  offer  it  for  sale, 
or  threatens  actual  evils,  coercing  him  by  threats,  bank- 
ruptcy, etc.,  to  obtain  new  promises  and  new  and  more 
exorbitant  gains.  Even  if  he  does  not  urge  a  debtor  to 
contract  the  debt,  he  wishes  to  gain  undue  advantages 
from  debts  without  loans.  He  induces  great  and  unjust 
fears  by  reasonable  but  untrue  statements.  Simple 
usury  cannot  be  reduced  to  a  simple  tort,  to  legal  fraud 
as  in  the  case  of  close  bargains  or  the  exaggeration  of 
the  value  of  an  object  for  sale,  or  even  of  a  lie  unaccom- 
panied by  trickery.  There  is  always  something  more 
than  this,  because  in  no  case  can  there  be  any  agree- 
ment between  good  faith  and  the  usurer.  A  tortfeasor 
acts  in  good  faith,  but  a  usurer  always  acts,  in  bad  faith. 


610  USURY 

Often  the  creditor  In  simple  usury,  even  when  he  has  not 
created  the  financial  disorder  of  the  debtor,  has  to  no 
small  extent  increased  it,  hastening  the  ruin  which  he 
has  foreseen  from  the  moment  when  the  debtor  first  came 
to  him.  In  usury,  which  instigates  and  seduces,  the 
premeditation  of  the  debtor's  ruin  begins  with  the  pick- 
ing out  of  a  victim  who  is  at  that  time  in  no  relation 
to  him  and  whom  he  proposes  to  entice  by  his  perverted 
art. 

§  398.  Usury  Lies  in  the  Debt  without  Considera- 
tion; Fraud  and  Extortion  are  Accidental.  There  are 
some  who  look  upon  usury  as  a  crime  only  when  it 
is  connected  with  fraud,  which  presupposes  an  act 
intended  to  deceive  and  the  attainment  of  illicit  gains 
injurious  to  another.  According  to  them,  those  forms 
of  usury  only  are  criminal  in  which  the  usurers  adopt 
artifices  to  protect  themselves  with  the  cloak  of  civil 
law  intended  to  prohibit  illicit  gains.  This  is  the  theory 
of  the  Tuscan  Penal  Code  which  punishes  cases  of  usury 
clothed  ormarked  by  fraud,  for  example,  swindling,  where 
the  debtor  declares  that  he  has  received  so  much  money, 
while  in  fact  he  has  only  received  a  certain  part  of  it, 
the  rest  having  been  given  in  worthless  securities,  although 
it  was  agreed  that  they  should  have  a  stated  value. 
Above  we  have  proved  that  usury  has  always  the  ele- 
ments of  a  crime,  trickery,  and  injury.  It  is  distinguished 
from  civil  injury  whether  it  be  simple  or  instigating,  and 
seductive  whether  it  is  accompanied  or  unaccompanied 
by  artifices.  Even  when  it  does  not  deceive  the  debtor 
and  does  not  adopt  a  savage  aspect  in  the  saddest  moments 
of  life,  it  is  always  a  crime,  because  it  is  founded  on  the 
desire  to  obtain  illicit  profit  from  the  exceptional  posi- 
tion of  the  debtor,  who  consents  through  inexperience 
or  necessity  to  assume  a  debt  without  a  loan  and  to  sub- 
scribe the  act  of  his  own  ruin.  In  such  a  case,  usury, 


A  CRIME  611 

which  for  various  reasons  is  a  special  crime,  is  more 
closely  related  to  extortion,  but  the  conception  of  neither 
extortion  nor  fraud  include  all  of  the  usurious  attributes. 
Usury,  it  may  be  said,  always  takes  advantage  of  extor- 
tion and  not  always  of  fraud  and  has  its  own  peculiarities, 
and  is  abhorrent  in  its  financial  and  legal  aspects.  Such 
a  crime  does  not  rationally  demand  the  element  of  cus- 
tom which  the  French  law  requires  since  we  can  find  in 
the  case  of  a  single  usurious  act  the  unjust  profit  of  a 
debt  without  a  loan  brought  about  by  the  inexperience 
or  stringent  needs  of  the  debtor.  Its  continuance  is  only 
an  aggravation. 

§  399.  Usury  is  a  Crime  against  Private  Property. 
The  special  features  of  the  crime  of  usury  are  gen- 
erally connected  with  the  crimes  against  economic  life 
and  especially  with  those  which  refer  to  exchange  and 
credit,  since  usury  involves  debts  without  corresponding 
loans,  or  debts  enormously  disproportionate  to  their  loans, 
and  since  credit  includes  property  and  usury  is  destruc- 
tive of  private  wealth,  so  we  can  state  that  usury  is 
referable  not  mediately  but  immediately  to  crimes 
against  private  property.  The  nature  of  usury  is  such 
that  it  is  always  criminal,  be  it  between  traders  or  not. 
From  the  ethico- juristic  aspect,  it  is  a  matter  of  pure 
indifference  whether  the  act  is  commercial  or  not.  Here 
we  must  observe  that  if  the  penal  laws  did  not  apply  to 
commercial  matters,  usury  would  abandon  its  customary 
civil  forms  and  assume  commercial  attitudes.  On  this 
account,  the  German  law  which  applies  to  traders  and  to 
commercial  matters  is  preferable  to  the  Austrian  law 
which  does  not  regard  traders.  It  is  true  that  in  business 
it  is  very  difficult  to  determine  accurately  the  point  where 
legal  profits  end  and  illegal  profits  begin.  But  this  dif- 
ficulty is  met  as  well  in  private  life  although  to  a  less 
degree.  The  net  account  is  always  a  difficult  thing  to 


612  USURY 

obtain  in  business  and  generally  in  all  human  affairs, 
because  they  are  complicated  in  their  nature.  If  the 
trader  gains  great  development  and  freedom  of  proce- 
dure, the  criterion  with  which  usury  in  trade  should  be 
judged  would  be  rougher  than  the  criterion  in  private 
life,  but  the  definition  which  we  have  given  of  usury 
would  remain  substantially  the  same. 

§  400.  Usury  will  Never  be  Eradicated  by  a  Statute. 
A  law  against  usury  which  has  so  many  diverse  causes 
will  certainly  never  destroy  that.  Usury  depends  upon 
the  financial  condition  of  society,  especially  upon  the 
scarcity  of  capital  and  deficient  development  of  credit. 
It  depends  upon  custom  in  which  bad  faith  takes  no  little 
part,  and  on  human  nature  itself,  in  which  overreaching 
and  egoistical  tendencies  are  not  foreign,  and  which  is 
marked  by  folly,  improvidence,  and  transient  enthu- 
siasm. Education  and  statutes  can  restrain,  modify,  and 
correct  these  tendencies,  which  are  now  more  and  now 
are  less  marked,  but  it  will  never  succeed  in  uprooting 
them.  And  this  is  true  because  usury  goes  on  its  pace 
when  it  is  forbidden  and  penalized,  and  when  it  is  free.  Is 
it  on  that  account  necessary  to  make  no  effort?  Should 
the  legislator  wait  with  arms  folded  for  the  spontaneous 
development  of  those  social  harmonies  which  we  have 
heard  so  much  about?  He  will  have  to  wait  many  and 
many  a  year  to  see  this  plague  diminished  or  on  the  way 
to  be  cured,  because  capital  is  not  yet  sufficiently  pro- 
ductive and  credit  so  far  has  not  become  so  general  and 
well-organized  as  to  foreshadow  the  approach  of  the  time 
when  usury  will  have  lost  its  strength.  Punishments, 
it  is  true,  have  appeared  with  economic  and  civil  progress 
and  in  a  great  number  of  cases  have  lessened  and  limited 
usury.  Fear  has  ordinarily  in  private  relations  been  the 
backbone  of  legislation,  and  the  branch  of  the  law  which 
prescribed  penalties  for  usury  was  most  important  in  the 


NEVER  ERADICATED  613 

years  gone  by.  In  our  own  time,  civil  law  bears  a  larger 
proportion  in  relation  to  the  ancient  penal  law  than  before, 
but  the  fear  of  conviction  has  by  no  means  ceased  to  exer- 
cise a  salutary  restraint  upon  the  conduct  of  men.  It  is 
true  that  usury  threatened  by  the  statutes  will  seek  bet- 
ter means  of  concealment  and  in  many  cases  will  probably 
succeed  in  escaping  prosecution.  But  the  attack  under  the 
civil  and  penal  aspect  must  be  equal  to  the  force  expended 
in  the  breaking  of  the  law,  hence  the  system  of  civil  law 
remedies  and  of  criminal  penalties  which  we  have  men- 
tioned in  this  chapter.  This  system  should  be  developed 
in  a  way  which  will  not  harm  true  credit  and  good  faith, 
getting  its  inspiration  from  the  rules  of  a  wise  economic 
legislative  policy.  In  a  word,  penal  laws  against  usury, 
if  they  do  not  always  and  effectively  punish  the  guilty 
because  of  imperfections  to  which  all  penal  laws  are  sub- 
ject, produce  two  not  unimportant  advantages;  on  one 
side,  they  keep  some  from  the  crime  who  are  disposed  to 
commit  it,  and  on  the  other,  they  preserve  the  high  repu- 
tation of  the  administration  of  justice,  not  forcing  it  to 
protect  contracts  of  a  potently  immoral  character,  and 
which  are  contrary  to  universal  opinion. 


614         PARTNERSHIP  AND  CONTRACTS 


CHAPTER  XVI 

PARTNERSHIP,  EXCHANGE,  TRANSPORTA- 
TION, AND  SUNDRY  WAGERING 
CONTRACTS 

THE  CONTRACT  OF  PARTNERSHIP  AND  ITS  FORMS.  —  PART- 
NERSHIP AND  INCORPOREAL  PERSONS.  —  THE  REGIME  OF 
AUTHORIZATION  AND  OF  SUPERVISION.  —  ANCIENT  AND 
MODERN  EXCHANGE.  —  THE  NATURE  OF  THE  CONTRACT  OF 
TRANSPORTATION.  —  INSURANCE  AND  ITS  NEW  THEORIES.  — 
GAMBLING  CONTRACTS. 

§  401.  Three  Kinds  of  Partnerships.  A  partnership 
is  generally  defined  as  a  contract  under  which  two  or 
more  persons  control  something  in  common  in  order 
to  get  gain  therefrom.  Civil  partnerships  accomplish 
their  object  in  civil  life;  commercial  partnerships 
make  speculations  by  the  exercise  of  commercial  acts. 
These  last  are  not  full  partnerships  but  particular,  since 
their  objects  are  always  clearly  marked.  These  are 
distinguished  into  three  kinds  according  to  the  amount 
of  liability  to  third  parties.  The  first  is  a  general 
partnership  in  which  the  partnership  obligations  are 
guaranteed  by  the  full  and  unlimited  liability  of  every 
partner.  The  second  is  the  limited  partnership  in  which 
the  partnership  obligations  are  guaranteed  by  the  full 
and  unlimited  liability  of  the  general  partners  and 
by  the  sums  deposited  by  the  special  partners.  The 
third  is  the  special  partnership  or  joint  stock  com- 
pany; in  it  the  partner  is  only  liable  to  the  amount 
invested. 


NOT  LEGAL  ENTITIES  615 

§  402.  Subdivisions  of  Partnerships.  A  general  part- 
nership offers  the  greatest  guaranty  to  third  parties, 
incites  the  great  activity  on  the  part  of  the  partners, 
and  is  useful  in  those  industries  which  need  the  pres- 
ence of  directing  partners  in  different  places  at  the 
same  time.  This  form  of  partnership,  requiring  un- 
limited confidence  among  the  partners,  does  not  include 
many  people.  Large  and  hazardous  undertakings  can 
only  be  accomplished  through  limited  or  special  part- 
nerships, which  are  better  able  to  concentrate  a  large 
capital,  impossible  where  there  is  unlimited  personal 
liability.  There  are  other  kinds  of  partnerships,  differ- 
ing among  themselves,  which  fall  under  the  main 
division  into  the  three  classes.  The  Italian  Commercial 
Code,  for  example,  allows  partnerships  for  mutual  insur- 
ance. It  looks  upon  them  as  collective  entities  distinct 
from  the  individuals  who  compose  them,  but  enforces 
the  requirements  of  a  special  partnership  as  to  the 
responsibilities  of  the  managers,  the  publication  of 
partnership  acts,  failure,  change  of  charter,  and  accounts. 
So,  in  the  case  of  the  cooperative  partnerships,  as  to 
publication  of  their  partnership  acts  and  the  obligation 
and  liability  of  the  directors,  the  code  applies  the  same 
rules  as  to  special  partnerships.  The  partnership  of  the 
German  Code  corresponds  to  the  Italian  dormant 
partnership  and  does  not  enter  into  the  three  cate- 
gories. A  partnership  with  a  dormant  partner  is  not 
an  entity  separate  from  its  members  like  the  other 
partnerships,  but  is  a  trade  union  of  one  or  more  persons 
with  a  participation  in  the  profits  and  losses  in  one  or 
more  operations,  or  even  in  an  entire  business. 

§  403.  Partnerships  are  not  Legal  Entities,  but  are 
More  than  the  Sum  of  the  Component  Wills.  Partner- 
ships in  general,  derived  from  the  interpenetration 
of  the  wills  in  respect  to  an  object  and  presuppos- 


616         PARTNERSHIP  AND  CONTRACTS 

ing  a  common  will,  are  ethical  organisms  in  the  broad 
sense  of  the  word.  But  this  common  will,  although 
easily  distinguishable  from  the  particular  wills  from 
which  it  arises,  is  not  such  as  to  constitute  the  definite 
and  self-existing  unity  of  a  corporation,  because  its  pur- 
pose is  not  fixed  and  therefore  is  not  independent  of  the 
desires  of  the  individuals.  A  partnership  looks  to  the 
immediate  advantage  of  its  members;  the  corporation 
works  for  its  own  ends.  A  partnership  is  dissolved  by 
death  or  at  the  will  of  its  members;  a  corporation  in 
these  cases  does  not  dissolve.  Partners  are  owners  and 
upon  the  dissolution  of  the  partnership  they  divide  the 
goods  among  them.  Members  of  a  corporation  are  not 
owners  of  its  property  and  do  not  divide  it  when  the 
corporation  ceases  to  exist.  A  partnership,  therefore, 
in  the  true  sense  of  the  word,  is  not,  like  a  corporation, 
a  juridical  or  incorporeal  person.  Nevertheless,  there 
is  in  a  partnership  something  more  than  the  collection 
of  its  members  or  the  sum  of  particular  wills,  because 
it  is  founded  on  a  common  will.  That  kind  of  a  will  is  a 
natural  element  which  is  found  in  the  maxim  of  the 
oldest  Italian  jurisconsults.  "Aliud  est  corpus  unius  so- 
cietatis  et  aliud  est  quilibet  ipsius  societatis."  The  maxim 
was  well  illustrated  by  examples  of  Roman  law  which 
recognized  in  some  forms  of  partnership  an  entity  dis- 
tinct from  the  members.  The  common  will  is  the  rational 
principle  of  juristic  individuality,  which  the  law  estab- 
lishes as  a  means  or  vehicle  for  relations  between  strangers 
and  the  partners,  who  are  in  fact  the  subjects  of  the 
rights  and  obligations.  A  suit  for  partner's  share  in 
fact  is  the  suit  for  the  quota  of  the  partner  in  the 
property  of  the  society  which  is  held  in  joint  ownership. 
If  the  theory  of  Ihering1  did  not  recognize  incorporeal 
persons  it  could  well  be  applied  to  partnership.  We 

lCf.  §  214  ante. 


NOT  LEGAL  ENTITIES  617 

must  not  forget  that  the  conditions  for  an  incorporeal 
person  understood  in  full  and  broad  sense  are  two  —  the 
capacity  to  will,  and  the  authorization  of  the  State. 
There  is  not  complete  personality  without  recognition, 
as  we  have  shown  before.1  Therefore,  Puffendorf  and 
Troplong  were  wrong  when  they  said  that  a  partnership 
of  itself  constituted  a  juridical  or  moral  being  without 
need  of  authorization,  which  was  demanded,  they  said, 
only  in  the  cases  of  public  moral  entities.  Recognition 
must  necessarily  be  given  by  the  State  or  not  at  all. 
Positive  law  can  admit  the  individuality  of  either  civil 
or  trading  partnerships,  or  those  of  trading  alone,  or 
both  of  trading  and  civil,  if  the  latter  assume  the  form 
of  a  trading  society.  It  all  depends  upon  the  motives 
and  general  utility  which  the  legislature  may  determine 
in  different  ways,  but  in  the  philosophy  of  law  every 
kind  of  partnership,  whether  civil  or  commercial,  has  the 
virtue  of  bring  raised  to  the  state  of  juridical  indi- 
viduality. Positive  law  ordinarily  does  not  consider 
the  civil  partnerships  as  collective  entities  because  they 
are  not  founded  necessarily,  as  trading  partnerships 
are,  on  relations  with  third  parties,  and  because  they 
have  not  purposes  as  definite,  certain,  and  manifest  as 
the  latter.  Civil  partnership  can  develop  in  many  ways, 
unknown  or  insufficiently  clear,  to  reach  presumptive 
recognition.  On  the  contrary,  the  trading  partnerships 
do  not  meet  these  obstacles  and  are  therefore  regarded 
by  the  laws  as  collective  entities.  The  same  laws  allow 
civil  societies  to  assume  trading  forms  without  losing 
their  essential  characteristics,  since  their  nature  does 
not  depend  upon  their  form.  In  this  case,  they  acquire 
juridical  individuality  because  they  are  founded  upon 
relations  with  third  parties  which  must  be  governed  by 
the  creation  of  a  means  or  vehicle,  as  Iheringsays. 

1  Cf.  §  220  ante. 


618         PARTNERSHIP  AND  CONTRACTS 

§  404.  Association  is  Old,  but  Associations  are  New. 
Troplong  writes  that  there  is  no  need  for  new  legisla- 
tive rules  on  the  subject  of  partnerships  because  asso- 
ciation is  a  fact  existing  in  all  ages.  And  truly  Roman 
history  shows  us  a  type  of  partnership  for  the  collecting 
of  taxes  besides  the  celebrated  example  of  a  private 
association;  while  the  Middle  Ages  gives  us  that  of  the 
great  Florentine  families,  and  the  Lombards  scattered 
in  all  regions  of  the  earth  but  always  creditors  of  their 
king.  The  history  of  the  XVI Ith  and  XVIIIth  centuries 
is  full  of  maritime  companies  for  trade  and  colonization. 
But  although  Troplong  gives  an  exact  description  of  the 
spirit  of  association  which  is  as  old  as  history,  he  has  not 
understood  the  profound  difference  between  the  old 
and  the  new  trading  societies.  The  first,  which  were 
composed  of  a  few  members,  were  all  founded  on  mo- 
nopoly, which  in  its  turn  demanded  slave  labor,  while 
the  second  lived  and  developed  power  in  the  regimes 
of  freedom.  Who  is  ignorant  that  the  Roman  eques- 
trian order  had  the  privilege  of  leasing  out  the  taxes? 
After  the  discovery  of  America,  have  not  the  distant 
undertakings  of  particular  companies  been  a  kind  of 
governmental  emanation?  And  was  not  the  East  India 
Company  given  the  tremendous  privilege  of  exclusive 
trade  in  its  territory?  The  same  society,  it  must  not 
be  forgotten,  was  made  owner  of  an  immense  expanse  of 
land. 

§  405.  Cooperative  Societies.  The  French  Revolution 
in  its  love  for  freedom  of  labor  looked  askance  at 
every  kind  of  association  among  operatives,  fearing 
that  under  the  semblance  of  a  recognized  society  a 
revolutionistic  order  would  arise.  From  this  suspicion 
came  that  isolation  of  the  operative  later  so  deeply 
deplored  and  eliminated  in  part  through  the  splendid 
application  of  the  great  principle  of  mutual  aid, 


COOPERATIVE  SOCIETIES  619 

the  real  base  of  cooperation,  whose  success  demands 
the  presence  of  the  highest  gifts  of  intellectual  and  moral 
human  nature.  Cooperation  is  principally  concerned 
with  consumption,  credit,  and  production.  The  coopera- 
tive societies  of  consumption  and  credit,  furnishing  means 
of  accumulation  and  instruments  of  labor,  are  the  best 
adapted  to  realize  production.  It  can  be  said,  to  adopt 
a  phrase  of  Vico,  that  cooperation  in  its  application  to 
consumption  and  credit  makes  its  own  material.  In 
cooperation  are  interwoven  ethics,  economics,  and 
politics,  because  the  individual  in  a  system  of  reciprocal 
aid  ceases  to  be  egoistic,  makes  larger  profits,  and 
becomes  a  factor  in  society.  In  fact,  in  the  cooperative 
associations  of  consumption  are  united  the  sentiments  of 
mutuality  and  individual  responsibility  together  with 
the  love  of  family.  They  obtain  just  prices,  good 
quality,  and  exact  weight.  The  love  of  family  always 
develops  and  becomes  stable  through  building  societies. 
When  an  operative  obtains  a  modest  home  in  which  his 
wife  can  be  with  the  children,  a  large  incentive  to  that 
bad  habit  of  tavern  life  is  destroyed,  the  number  of 
crimes  diminishes,  and  the  beneficial  sentiment  of  house- 
holding  appears,  and  the  real  base  of  the  workmen's 
credit  is  established.  The  people's  cooperative  banks 
begin  a  state  of  personal  and  democratic  credit,  because 
they  do  not  require  the  deposit  of  capital  and  conciliate 
the  two  diverse  objects  of  mutualism  and  individual- 
ism, which  constitute  a  problem  which  has  not,  as  yet, 
been  well  considered.  The  cooperation  of  production 
does  not  add  fuel  to  the  antagonism  between  capital 
and  labor,  but  presupposes  a  capitalistic  laborer. 
Neither  does  it  owe  its  origin  to  a  dependent  right  to 
labor ;  it  asks  nothing  of  the  State.  Such  societies  cannot 
be  considered  as  fantastic  communities;  they  do  not 
absorb  the  individual,  nor  are  they  opposed  to  competi- 


620         PARTNERSHIP  AND  CONTRACTS 

tion,  because  there  are  large  and  small  industries  which 
have  a  great  need  of  help  in  order  to  make  both  ends 
meet  through  the  exorbitant  prevalence  of  the  bigger 
industries. 

§  406.  Need  to  Regulate  Cooperative  Societies.  With 
these  statements  as  a  premise,  it  becomes  evident  that 
modern  commercial  legislation  has  (despite  the  con- 
trary opinion  of  Troplong)  to  recognize  and  regulate 
these  new  forms  of  association,  which  are  the  effect 
of  the  natural  development  of  freedom,  which  never 
resuscitates  old  economic  forms  of  civil  society.  It  is, 
however,  necessary  to  notice  that  if  the  cooperative 
societies  from  one  point  of  view  are  commercial  societies, 
because  they  have  speculation  for  an  object  and  live  by 
trade,  from  another  point  of  view  they  are  something 
greater,  since  they  tend  to  harmonize  the  desires  and  per- 
sonal interests  with  the  principles  of  social  stability  and 
fraternity  through  the  development  of  the  laboring 
classes.  In  this  sense  such  cooperative  societies  are 
involved  in  social  legislation. 

§  407.  Governmental  Authorization  of  Partnerships. 
The  principle  of  economic  freedom,  which  has  generated 
new  forms  of  association,  is  destined  to  produce  still 
more  general  and  notable  changes  in  the  relations  between 
such  entities  and  the  State.  Even  now  the  day  of  govern- 
mental authorization  nears  its  end  in  the  codes  of  civil- 
ized people.  It  is  entirely  contrary  to  contractual 
freedom  and  cannot  fail  to  seem  strange  that  for 
the  completion  of  a  private  contract  (which  a  partner- 
ship is)  there  is  need  of  governmental  authorization, 
while  it  is  demanded  in  no  other  kind  of  contract. 
It  is  an  anomaly  that  the  administrative  power  can 
interfere  in  affairs  of  individual  interests,  protected 
and  limited  by  law.  Now  this  interference  is  contrary 
to  principles  of  civil  equality,  and  does  not  exist 


GOVERNMENTAL  SUPERVISION          621 

except  when  the  law  makes  general  rules  and  not 
special  rules  for  different  cases.  Law  to-day  should  not 
take  care  of  him  who  ruins  himself  and  loses  his  for- 
tune, when  he  is  in  a  position  to  understand  what  he 
is  doing  and  is  effectively  free,  because  the  individual 
cannot  remain  eternally  a  minor  escaping  thus  from  a 
sense  of  responsibility  upon  which  moral  progress  largely 
depends.  Law  should  not  look  upon  the  State  as  an 
Argus  or  a  Briareus,  since  the  public  power  is  not  compe- 
tent to  judge  correctly  about  the  economic  conditions 
of  an  industrial  project,  jeopardizing,  perhaps,  the  con- 
fidence of  the  citizens  in  the  State,  because  of  frequent 
cases  of  bankruptcy  more  or  less  shameful  in  opera- 
tions which  had  received  the  governmental  placet. 
History  shows  that  authorization  has  not  efficiently 
hindered  the  triumph  of  deceit,  neither  has  it  pre- 
vented the  bold  effrontery  of  swindlers  and  adven- 
turers to  the  harm  of  many  who  believed  themselves 
sufficiently  protected  by  the  prior  governmental 
examination  of  an  undertaking  conducted  under  the 
form  of  a  limited  or  special  partnership.  On  the  other 
hand,  it  is  possible  that  projects  capable  of  great 
utility  might  not  meet  the  approval  of  the  govern- 
mental advisers  ordinarily  unversed  in  industrial  mat- 
ters, and  therefore  blinded  by  scruples  and  by  their 
education.  In  such  a  case  the  refusal  of  the  authoriza- 
tion is  an  incalculable  loss  to  civil  society. 

§  408.  Governmental  Supervision  of  Partnerships. 
The  fate  of  the  system  of  vigilance  is  one  with  that  of 
authorization  because  both  are  based  on  the  forethought 
of  a  paternal  government.  Governmental  supervision 
has  disappeared  in  the  progressive  nations.  The  gen- 
eral opinion  on  this  subject  is  that  the  government 
should  abstain  from  all  direct  interference  leaving  to  the 
persons  interested  the  care  and  responsibility  of  taking 


622         PARTNERSHIP  AND  CONTRACTS 

account  of  the  doings  of  a  partnership  of  which  they  are 
members  or  with  which  they  are  connected.  It  is  clear 
that  they  can  always  bring  it  before  a  competent  court 
for  any  violation  of  law.  Governmental  supervision 
has  the  same  vices  as  authorization;  it  is  incompetent 
to  hinder  the  maladministration  of  the  partnership. 
Thus  on  one  hand,  it  is  pernicious  to  private  interests, 
because  it  creates  a  false  belief  that  they  are  subject  to 
investigation,  and  on  the  other  hand,  it  harms  the  good 
name  of  the  government  to  whose  negligence  are  imputed 
all  the  maladministrations.  A  watchfulness  exercised 
only  over  the  important  companies  would  result  in  an 
illegal  and  odious  inequality  of  treatment. 

§  409.  Publicity  in  Partnership  Business  and  Per- 
sonal Liability.  We  believe  that  the  dangers  resulting 
upon  partnerships  in  business  can  be  avoided  by  follow- 
ing the  principle  of  freedom  with  its  necessary  and 
practical  consequences.  From  this  it  follows  that  the  law 
should,  above  all  things  else,  establish  the  greatest  pub- 
licity in  respect  to  the  number  and  nature  of  the  acts 
and  greater  and  more  active  efficacy  in  regard  to  the 
method  of  carrying  them  out.  It  should  provide,  too, 
for  fuller  and  more  rigorous  liability  for  obligations 
assumed  on  the  part  of  the  managers,  promoters,  officers, 
and  all  those  who  are  active  in  the  partnership.  The 
law  finally  should  render  the  watchfulness  of  those  in- 
terested easy  without  disturbing  the  organization  of  the 
associations  by  foreign  factors  such  as  instruments  of 
government  protection.  The  ideas  enunciated  here  have 
already  begun  to  have  their  influence  on  modern  law, 
as  can  be  seen  from  such  laws  as  are  in  existence. 

410.  Freedom  to  Associate  is  Necessary.  The  con- 
ception of  freedom  of  business,  gathered  by  us  in  an 
inductive  manner  from  economic  history,  positive  law, 
and  all  recent  experience  on  the  subject,  becomes  also  de- 


BILLS  OF  EXCHANGE  623 

ductive  and  necessary,  connected  as  it  is  with  the  law  of 
the  respect  due  to  private  property,  and  therefore  to  the 
principle  of  individual  personality.  Because  it  follows 
from  the  recognition  that  the  individual  personality  is 
the  very  freedom  of  individual  man,  and  that  property 
is  the  investiture  of  the  person  and  his  free  will  applied 
to  objects,  that  the  individual  can  dispose  of  his  posses- 
sions as  he  will  and  that  he  can  render  them  subject  to 
infinite  agreements  as  long  as  he  does  not  offend  against 
custom,  the  social  well-being,  and  public  order.  Such 
limitation  as  we  have  seen  he  enacted  in  regard  to  forest 
and  mining  property1  can  easily  be  understood  when 
we  recollect  that  in  the  ethical  organism  so  different 
from  the  natural,  the  whole  should  respect  the  respon- 
sibility of  the  parts  as  the  parts  should  act  in  consider- 
ation of  the  conscious  and  free  life  of  the  whole. 

§  411.  Bills  of  Exchange.  Many  writers,  like  some 
legislators,  among  whom  the  French  take  an  import- 
ant place,  consider  a  bill  of  exchange  as  a  proof  or 
symbol  of  a  contract  for  the  transportation  of  money,  by 
which  the  contractor  assumes  the  obligation  of  paying 
a  sum  of  money  to  another  or  upon  his  order  at  a  certain 
time  or  place  for  value  given.  There  are  three  conditions 
to  a  bill  of  exchange,  understood  in  this  manner:  the 
transportation  from  one  place  to  another,  a  contract 
between  the  drawer  and  drawee,  and  the  indication  of 
value  received.  A  bill  of  exchange  differs  from  a  promis- 
sory note,  because  the  latter  is  an  act  by  which  the 
maker  obligates  himself  to  pay  the  creditor  or  his  order 
at  a  definite  time,  declaring  that  he  has  received  value. 
The  former  is  always  commercial,  while  the  note  is  such 
only  if  signed  by  a  trader  or  issued  in  commerce,  and 
because  it  has  a  drawee  and  is  drawn  on  a  distant  place. 
In  a  note,  he  who  pays  is  the  maker,  and  he  pays  in  the 

lCf.  Chap.  VII,  Bk.  II,  ante. 


624     .     PARTNERSHIP  AND  CONTRACTS 

same  place  in  which  the  note  is  made.  Now  this  theory 
is  substantially  modified  by  science  and  law;  and  the 
radical  modification  is  sanctioned  by  the  philosophy 
of  law.  A  man  can  easily  employ  a  bank  and  draw  a 
letter  of  exchange  thereon  to  his  own  credit.  In  such 
a  case  there  is  no  transportation,  but  there  is  a  simple 
title  of  credit  or  an  instrument  of  exchange  given. 
A  true  bill  of  exchange  is  an  obligation  surrounded  by 
rigorous  formalities  to  distinguish  it  from  other  obliga- 
tions and  to  render  commerce  more  efficacious  and  cer- 
tain. It  must  be  a  written  obligation,  by  which  one  is 
bound  to  pay  a  sum  of  money  to  whomsoever  presents 
the  paper  at  maturity.  This  understood,  it  does  not  pre- 
suppose transportation  from  one  place  to  another,  and 
furthermore,  the  drawer  can  draw  upon  himself  and  pay 
it  without  the  intervention  of  a  drawee.  A  bill  of  ex- 
change does  not  really  demand  a  contract  between  a 
drawer  and  drawee,  neither  has  it  any  need  of  con- 
taining the  statement  of  value  received,  because,  as 
Thol  says,  writing  on  this  subject,  the  contract  of  a  bill 
of  exchange  arises  when  the  bill  is  drawn.  The  indis- 
pensable conditions  are  delivery  and  presentation.  A 
bill  of  exchange  is  the  promise  to  pay  a  sum  of  money 
to  the  payee ;  it  is  performed  by  the  drawee  or  indorser, 
if  he  accepts.  There  is  no  counterpromise  on  the  part 
of  him  who  takes  the  bill  of  exchange,  because  he, 
having  the  title,  has  the  rights  and  is  not  bound  by  any 
duties.  (It  is  true  that  he  should  present  it  to  the  drawee 
for  acceptance  and  that,  in  case  he  does  not  accept  or 
pay,  he  should  have  it  protested,  an  act  by  which  the 
failure  to  accept  or  pay  is  stated,  but  these  are  the  only 
conditions  for  the  exercise  of  the  right  of  the  holder  and 
they  are  not  real  obligations,  as  Marghieri  has  shown  in 
"La  Cambiale.")  From  what  has  been  said  of  the 
nature  of  a  bill  of  exchange  it  is  clear  that  it  is  not  a 


TRANSPORTATION  625 

mixture  of   buying  and  selling  or  of   bailment  and  loan 
for  use,  as  Trendelenburg  thinks. 

§  412.  Transportation.  Transportation  has  the  great- 
est possible  importance  because  a  large  part  of  the 
objects  of  wealth  and  value  is  brought  into  circula- 
tion by  its  aid.  We  can  state  without  fear  of  error 
that  almost  all  the  commercial  life  of  society  centres 
about  this  business  which  at  the  present  day  is  largely 
conducted  through  railroads.  A  railroad  is  the  use  of 
the  steam-engine  for  transportation.  It  demands  large 
capital  and  the  formation  of  collective  entities  for  its 
construction  and  exercise.  Upon  it  the  transportation 
of  the  greater  part  of  the  merchandise,  the  objects  of  ex- 
change, depends,  and  it  brings  the  other  means  of  trans- 
portation into  coordination  and  harmony  with  it.  Thus 
it  is  the  principal  factor  of  travel.  The  State  has  been 
obliged  to  fix  the  general  plan  of  railroad  construction 
by  statute  and  to  regulate  its  functions,  because  this 
means  of  transportation,  like  the  others  that  are  con- 
nected with  it  and  depend  on  it,  is  an  object  of  public 
service.  It  is  here  a  question  both  of  the  circulation  of 
wealth  and  the  granting  of  a  monopoly,  since  the  laws  of 
competition  cannot  take  part.  For  experience  shows 
that  where  there  is  one  railroad,  another  will  not  be 
built  alongside,  because  the  cost  as  well  as  the  govern- 
mental grant  forbids  such  a  struggle  for  trade.  One  is 
usually  sufficient  to  unite  the  whole  countryside.  The 
determination  of  the  railroad  plan  and  the  relation 
between  the  State  and  the  company  is  a  matter  of 
administrative  law.  The  regulation  of  the  relative 
duties  of  shipper,  carrier,  and  consignee  is  a  question 
of  commercial  law,  which  is  not,  however,  a  conventional 
and  voluntary  law  on  this  subject,  preserving  as  it  does 
in  the  typical  means  of  transportation  the  character  of 
public  service.  A  contract  of  transportation  does  not 


626         PARTNERSHIP  AND  CONTRACTS 

regard  an  isolated  act,  however  complicated,  but  the 
whole  business.  The  isolated  act  is  simply  an  act  of 
civil  life  and  not  commercial.  Transportation  implies 
a  legal  relation  between  him  who  sends  the  goods  and 
him  to  whom  they  should  be  brought,  and  the  third  who 
should  take  them  from  the  first  and  second.  A  contract 
of  transportation,  says  De  Tullio  in  a  book  of  that  name, 
is  complex,  presupposing  rights  and  duties  between  the 
shipper,  consignee,  and  common  carrier  from  the  moment 
of  its  formation.  The  identity  of  the  consignee  is  of 
little  importance,  but  at  the  moment  of  the  formation 
of  the  contract  there  must  be  some  consignee,  although 
he  need  not  be  certain.  In  such  cases  the  consignment 
is  made  to  the  bearer  in  the  bill  of  lading,  because  the 
shipper  must  say  that  he  has  contracted  an  obligation 
with  somebody,  though  he  is  ignorant  what  individual 
it  is.  The  initial  carrier  in  regard  to  the  shipper  acts  as 
agent  of  the  other  common  carriers  and  in  regard  to  the 
other  common  carriers  he  acts  as  agent  of  the  shipper. 
The  contract  is  a  unit  despite  the  number  of  intermediate 
carriers;  the  bond  which  holds  the  shipper,  consignee, 
and  common  carrier  is  one.  The  carrier  accepts  the 
obligation  of  providing  the  transportation,  and  he  is 
responsible  for  its  execution  as  if  it  were  his  own  act, 
even  if  he  must  employ  other  carriers. 

§  413.  Insurance  and  Socialism.  Insurance  is  a  wager- 
ing contract  by  which  the  insurer  obligates  himself  to 
guarantee  the  insured  from  a  certain  risk  for  a  stipu- 
lated sum,  called  a  premium,  which  is  determined  by 
the  nature  of  the  risk.  Insurance  eliminates  misfor- 
tunes by  the  division  of  the  risk  and  can  be  con- 
sidered, as  Hermann  considered  it,  as  the  commerce 
of  indemnity  for  loss.  He  says  that  the  prevention 
and  repression  compete  with  insurance.  Prevention 
demands  great  care  and  is  very  expensive;  repres- 


INSURANCE  AND  SOCIALISM  627 

sion  costs  less  though  it  often  has  no  effect;  insur- 
ance costs  still  less,  but  the  accident  happens.  Wagner 
and  the  other  champions  of  the  socialism  of  the  State, 
moved  by  an  erroneous  conception,  which  we  have 
criticized  before1  (that  is,  that  with  the  progress  of  time 
the  functions  of  the  State  increase  to  the  detriment  of 
the  activities  of  private  citizens),  tend  to  make  public 
law  re-absorb  a  great  part  of  private  law.  We  have 
observed  that  society  thus  would  travel  over  a  road 
that  it  has  already  been  over  and  return  to  the  epoch 
of  imperative  law,  in  which  the  statutes  provided  for 
everything  and  the  State  took  part  in  all  the  business 
of  economic  and  civil  existence.  Conforming  to  this 
principle,  the  same  writers  affirm  that  insurance  is  not 
a  business  of  free  and  private  trade,  but  a  public 
institution,  that  is,  it  is  the  fulfillment  of  a  duty 
on  the  part  of  the  State  which  must  be  substituted  for 
the  companies.  Public  administration,  they  say,  car- 
ries .on  the  business  of  communication,  water  supply, 
sanitation,  and  city  illumination;  if  it  represses  the 
causes  of  injury,  it  can  well  complete  the  system  by 
assuming  the  business  of  insurance.  The  insurance 
companies  are  very  complex  and  often  resemble  petty 
States  and  are  governed  by  men  whose  only  interest 
lies  in  their  salary.  The  State  should  take  over  the 
business  of  insurance,  not  with  an  object  of  gain,  but  as 
a  means  of  general  well-being,  for  it  would  have  no  need 
to  make  deceitful  promises  or  pay  large  commissions  to 
solicitors.  Private  insurance  contains  always  a  great  in- 
justice in  the  relation  of  the  premium  to  the  risk.  It 
is  not  equitable  that  the  farmer  should  pay  a  greater 
premium  for  fire  insurance  for  his  home  than  the  mil- 
lionaire in  the  city  pays  for  his  magnificent  home.  In 
general,  the  degree  of  risk  is  not  the  effect  of  a  free  act 

1Cf.  §  191  ante. 


628         PARTNERSHIP  AND  CONTRACTS 

of  will  as  in  the  case  cited  and  a  thousand  others.  Pri- 
vate insurance  is  not  possible  for  those  who  need  it  most ; 
justice  demands  that  the  premium  should  have  a  relation 
to  the  wealth  of  the  insured,  and  the  State  becoming 
insurer,  could  provide  it  for  the  poor  and  needy. 

§  414.  Criticism  of  the  Socialistic  View  of  Insurance. 
A  criticism  of  these  articles  has  been  made  with  great 
acumen  by  Salandra,  in  his  book  "Un  Casodi  Socialismo 
di  Stato."  Above  all,  we  must  note  that  a  modern  State 
is  not  generally  disposed  to  assume  economic  functions. 
We  have  already  seen  that  it  has  sold  its  land  and  no 
longer  competes  in  business  with  its  citizens,  but  gets 
its  income  chiefly  from  the  customs.1  To  realize  its 
conception  of  its  duties  to  protect  the  law  and  the 
progress  of  culture  and  well-being,  it  takes  part  in 
economic  pursuits,  if  the  private  citizens  have  not 
sufficient  initiative,  if  it  must  destroy  the  pernicious 
effects  of  a  monopoly,  or  if  it  is  a  question  of  pro- 
moting an  industry.  Such  cases  of  governmental  inter- 
vention alleged  by  the  socialists  of  the  Wagnerian  school 
are  related  to  public  security  and  help,  and  not  with 
economic  ends.  City  lighting,  hygiene,  and  police  are 
examples  of  this.  The  prevention  or  repression  of 
causes  of  injury  are  duties  of  a  State,  since  it  must  pre- 
serve individuals  from  dangers  that  threaten  all.  The 
benefit  of  insurance  is  obtained  when  an  accident  has 
happened  and  the  burden  has  fallen  on  the  life  or  estate 
of  some  individual.  An  injury  must  be  avoided  or  re- 
paired by  him  who  caused  it.  Furthermore,  it  is 
indubitably  clear  that  individual  management  is  more 
economic  than  management  by  a  society  and  the  latter 
more  economic  than  administration  by  the  State  because 
they  are  smaller  and  controlled  by  persons  who  are 
trained  managers  and  have  an  interest  in  the  gains 
lCf.  §  192  ante. 


INSURANCE  RATES  629 

and  are  watched  by  the  stockholders,  who  have  cer- 
tainly a  more  direct  and  keen  interest  than  the  members 
of  a  civil  government  or  political  assembly  chosen  by 
election.  Insurance  as  an  industrial  enterprise  which 
renders  cheap  services,  adapting  itself  to  the  habits, 
needs,  and  prejudices  of  its  members,  is  always  better 
entrusted  to  private  citizens.  Experience  is  the  strong- 
est proof  of  the  truth  of  this  judgment  which  shows  that 
the  attempts  by  the  State  to  carry  on  insurance  have 
generally  been  failures. 

§  415.  Insurance  Rates  are  Determined  by  Calculation. 
We  must  reflect  that  the  essence  of  insurance  is  the 
proportion  of  the  premium  to  the  risk.  Insurance 
rates  are  ascertained  thro  ugh  mathematical  principles  by 
calculation  and  cannot  logically  be  subordinated  to 
ethical  purposes.  No  one  would  wish  to  pay  a  higher 
rate  than  was  due  so  that  another's  rate  might  be  lower. 
Take  away  the  principle  of  proportion  and  insurance 
will  vanish.  Admitting  that  everyone  is  obliged  to 
insure  and  that  some  pay  higher  and  some  less  premi- 
ums than  they  should,  it  is  clear  that  the  first  would 
pay  a  tax  so  that  the  State  could  give  an  almost  gratu- 
itous service  to  the  second.  Such  beneficence  may  be  a 
special  duty  of  the  State,  whose  legitimacy  and  conven- 
ience it  is  not  necessary  to  examine  now,  but  certainly  it 
is  not  true  insurance.  Insurance  is  not  a  method  of 
equalizing  fortunes  and  solving  social  difficulties.  It  does 
not  tend  towards  an  equal  division  of  wealth,  as  Wagner 
believes.  If  it  is  true,  says  Zammarano  in  "L'lntra- 
presa  delle  Assicurazioni,"  that  the  farmer  cannot  build 
his  house  of  brick  or  stone,  but  must  build  it  of  wood; 
if  it  is  true  that  he  who  does  not  enjoy  good  health 
cannot  be  insured  or  must  pay  a  higher  premium;  and 
if  he  who  has  a  field  exposed  to  the  destructive  force  of 
hailstorms  must  pay  more  than  he  who  has  a  field  less 


G30         PARTNERSHIP  AND  CONTRACTS 

exposed  to  this  plague,  insurance  has  no  duty  to  repair 
the  social  inequalities  or  to  give  wealth,  strength,  or 
health  to  them  that  lack  it. 

§  416.  Insurance  is  more  Economic  than  Ethical. 
The  insurance  business  is  not  really  a  protective  in- 
stitution, because  it  looks  to  profits;  charitable  insti- 
tutions, as  savings  banks,  mutual  aid  societies,  and 
such,  have  no  financial  aim.  Even  the  mutual  insurance 
companies  (a  kind  of  cooperative  society)  have  really 
a  financial  aim,  the  insured  wishing  to  pay  a  less  premium 
for  the  risk  with  the  increase  in  the  number  of  policies. 
He  does  a  protective  act  who  insures  his  life,  house, 
or  harvest  and  not  the  company  which  gains  thereby. 
Insurance  companies  are  of  great  social  importance 
dividing  the  total  loss  among  a  great  number  of  stock- 
holders. On  one  hand,  they  limit  the  individual  loss,  and 
on  the  other  hand  they  prevent  great  losses  by  the  banks 
and  corporations,  due  to  wide- reaching  accidents,  and 
thus  avoid  a  diminution  of  income.  The  great  obstacle 
to  their  development  is  the  rate  which  remains  high, 
because  competition  is  difficult.  Zammarano  observes 
that  the  old  life-insurance  companies  increase  the  com- 
missions of  the  soliciting  agents  to  take  business  from 
their  new  rivals,  and  that  the  new  associations  are  forced 
to  raise  theirs  more,  creating  thus  an  excess  of  expense 
and  not  keeping,  therefore,  a  reserve  equal  to  the  risks 
assumed.  The  companies  for  their  insurance  against 
injury  unite  and  refuse  any  reinsurance  to  the  younger 
societies  which  do  not  adopt  their  rate.  Mutual  so- 
cieties have  no  less  need  of  agents,  who  demand  the  same 
rate  as  the  business  companies  pay;  and  they  cannot 
deny  it  because  they  must  extend  the  sphere  of  their 
business.  It  is  futile  to  dream  of  a  more  efficacious  and 
economic  control  of  insurance  through  the  State  with 
the  object  of  establishing  competition  among  the  private 


GUARD  AGAINST  TRICKERY  631 

concerns,  because  in  all  the  civilized  countries  of  Europe 
these  attempts  have  been  made  and  have  not  succeeded, 
except  in  Germany,  where  there  is  a  peculiar  combination 
of  circumstances.  A  deficiency  of  the  reserve  fund, 
in  consequence  of  heavy  expense,  does  not  in  short 
policies  ruin  the  concern,  if  it  acquires  every  year  a  cer- 
tain number  of  new  policies.  In  such  cases  the  new 
insurance  pays  for  the  old  and  the  business  goes  on  until 
the  ascending  movement  stops,  or  many  losses  occur. 
The  salient  point  of  the  question  is  always  the  obtaining 
of  a  reserve  fund,  the  exact  value  of  which  should  be  pre- 
scribed by  law.  It  must  not  be  forgotten  that  the  matter 
of  insurance  is  too  complicated  and  delicate  to  be  easily 
understood.  Often  the  directors  of  the  companies  do  not 
understand  it  well.  The  insured  knows  nothing  about  it 
and  is  without  the  company,  and  therefore  can  exercise 
no  supervision.  The  observations  of  Zammarano  are 
true  and  his  deduction  valid.  The  law  is  called  upon  to 
harmonize  the  principle  of  freedom  of  trade  with  the 
necessity  of  a  serious  protection  of  the  rights  of  the 
insured.  If  it  were  shown  that  this  protection  could 
not  be  obtained  except  by  the  intervention  of  the  State, 
there  would  be  a  case  where  a  reasonable  exception 
existed  for  preventive  authorization  and  control  by 
the  government  in  the  case  of  trading  corporations.  And 
this  exception  is  not  the  only  one,  since  no  one  doubts 
the  legality  and  propriety  of  the  State  board  of  bank 
examiners  for  banks  that  issue  notes. 

§  417.  The  Law  should  Guard  against  Trickery.  The 
law  should  promote  moral  conditions  for  the  better 
development  of  social  life  and  should  give  a  free  field 
for  productive  labor.  It  should  not  protect  wager- 
ing contracts  which  are  based  on  thoughtlessness 
and  idleness,  creating,  on  one  side,  sudden  and  enormous 
fortunes,  and  on  the  other,  instantaneous  desolating 


632         PARTNERSHIP  AND  CONTRACTS 

ruin  and  misery.  While  the  law,  however,  cannot 
watch  all  the  games  of  chance,  it  can  watch  the  tricks 
which  lie  within  the  exercise  of  corporations.  This 
guardianship  can  be  exercised  against  speculation, 
that  is,  to  those  contracts  which  do  not  entail  the 
acquirement  of  stock  or  the  payment  of  money  at  the 
moment  of  formation,  but  the  payment  in  the  future 
of  the  difference  in  value  not  dependent  on  blind  luck. 
In  the  same  way  that  particular  knowledge  is  required 
for  the  race  course,  the  pursuit  of  arms  and  other  exer- 
cises, in  the  present  case  a  knowledge  of  a  special  kind 
is  necessary  in  order  to  foresee  the  flux  and  reflux  of 
the  values  quoted  on  the  exchange.  Such  knowledge 
regards  the  commercial  movement  of  values  and  their 
tendencies.  It  is  not  blind  luck  which  decides,  but 
certain  facts  which  can  only  be  foreseen  after  attentive 
study  and  long  experience. 


PROTOTYPE  OF  THE  STATE  633 


CHAPTER  XVII 

THE    PRIMITIVE   FAMILY.— THE   FAMILY  AS 
THE  PROTOTYPE  OF  THE   STATE 

MATING  AND  THE  INSTINCT  OF  REPRODUCTION  IN  ANIMALS.  — 
THE  THEORIES  OF  LUCRETIUS  AND  VICO.  —  PRIMITIVE  UNIONS. 
—  MATRIARCHY.  —  EXOGAMY  AND  RAPE.  — THE  BEGINNINGS  OF 
THE  DEVELOPMENT  OF  THE  PATRIARCHAL  FAMILY.  — THE  PRO- 
GRESSIVE INDIVIDUALIZATION  OF  RELATIONSHIP.  —  THE  PROCESS 
OF  SPECIFICATION,  AND  THE  OBJECT  OF  THE  FAMILY. 

§  418.  The  Primitive  Family.  The  Family  as  the 
Prototype  of  the  State.  Individual  man  expands  through 
property,  which  represents  acquired  means,  and  de- 
velops through  reciprocal  acts,  the  result  of  a  common 
will  working  for  determinate  useful  objects.  He  begins 
his  development  with  family  relations,  which  are  the 
closest  and  first  form  of  society.  The  family  is  an 
ethical  organism  in  which  many  consciousnesses  inter- 
penetrate, many  wills  agree,  forming  a  common  con- 
sciousness with  a  common  spirit  and  will.  It  is  the 
intimate  union  of  nature,  based  on  feeling,  and  for  a 
definite  need.  In  the  evolution  of  ethico-juridical  forms, 
it  shows  progress  as  it  affects  individual  property  and 
obligations,  because  man  is  no  longer  merely  individual, 
but  connotes  an  ethical  organism.  It  is  through  the 
family  that  the  individual  becomes  the  abstract  man, 
who  is  seen  more  fully  in  civilization,  in  a  State,  and 
in  a  system  of  States.  If  the  family  is  a  real  union, 
civilization  and  the  State  are  human  communities  based 
on  the  distinction  of  interests  and  the  principles  of 


634  THE  PRIMITIVE  FAMILY 

reason.     The  system  of  States  presupposes  the  human 
factor  in  every  nation. 

§  419.  Elementary  Family  among  Animals.  The 
state  of  matrimony  and  the  family  have  their  distinct 
prototypes  in  some  forms  of  intercourse  and  co-exis- 
tence among  species  of  animals.  The  lowest  and  most 
general  satisfaction  of  the  instinct  of  reproduction  is  pro- 
miscuity. The  sexual  life  of  most  animals  follows 
organic  impulses,  blindly,  without  showing  preferences 
or  attachments  which  amount  to  anything  like  choice 
or  fidelity.  Polygamy  exists  among  the  animals  which 
live  in  groups,  where  there  is  a  predominance  of  females 
over  males.  Polyandry  is  very  rare,  because  the  female 
is  not  as  strong  as  the  male  and  cannot  curb  and  check 
the  extravagances  of  a  male  seraglio.  Monogamy  is  not 
rare  among  the  species  which  are  scattered,  living  in 
couples  either  because  of  difficulty  in  finding  food  or 
because  of  their  unsociable  nature.  Some  species  give 
marvelous  examples  of  monogamy,  where  widowhood 
ordinarily  results  in  the  death  of  the  survivor.  There 
are  examples  among  animals,  too,  where  the  instinct  of 
reproduction  has  lost  its  original  egoistic  character. 
Among  the  ants  reproduction,  following  a  system  for 
the  division  of  labor,  is  assigned.  The  search  for  any 
kind  of  domestic  life,  however,  has  been  fruitless  in  the 
lower  species,  which  pay  but  little  attention  to  their  off- 
spring, and  leave  preservation  to  chance.  With  reptiles, 
the  female  gives  some  care  to  her  eggs,  while  the  male 
gives  her  food.  It  is  in  the  female  that  the  love  of  young 
first  awakens;  in  the  male  it  comes  later  and  with  less 
intensity.  With  both  parents,  this  love  lasts  only  until 
the  time  of  weaning;  hence  the  short  duration  of  domestic 
relations  even  among  the  monogamic  animals.  Filial 
affection  is  a  pure  exception ;  the  larger  apes  have  a  kind 
of  family,  in  which  the  children  and  the  parents  live  to- 


ORIGIN  OF  HUMAN  FAMILIES  635 

gether  for  a  certain  length  of  time.  The  head  is  a  male 
adult  who  keeps  his  authority  only  until  he  is  abandoned 
or  murdered  by  his  own  children.  The  basis  of  domestic 
obedience  is  force,  making  a  command  binding  as  long 
as  the  father  is  in  a  position  to  punish  those  who  disobey. 
As  a  general  rule,  the  female,  among  the  mammiferous 
animals,  is  the  centre  about  which  the  family  is  grouped. 
If  the  male  remains  a  member,  it  is  due  more  to  her  at- 
tractions than  to  love  of  progeny. 

§  420.  Former  Views  of  the  Human  Family.  Coming 
now  to  regard  the  phases  of  human  matrimony  and 
family  relations,  we  see  to-day  in  all  science  which 
deal  with  man  and  civil  institutions  that  what  existed 
in  the  past  is  still  observable  in  the  living  species. 
As  in  like  studies,  not  a  few  types,  believed  primitive 
for  many  years,  have  been  shown  to  be  posterior  forms 
more  or  less  imperfect,  so  some  social  facts,  though  orig- 
inal and  initial,  appear,  in  the  light  of  later  analysis, 
derivative  and  historic  in  the  true  sense.  One  of  these 
facts  is  the  patriarchal  family,  which  until  recently  has 
been  represented  as  an  elementary  natural  group,  exist- 
ing from  the  beginning  of  humanity,  and  consisting  of  a 
father  with  one  or  more  wives,  and  their  offspring.  The 
relationship  was  determined  through  the  father,  who  was 
the  absolute  owner  of  the  wives,  children,  and  property. 
So  the  patriarchal  families,  growing  larger,  brought  about 
the  "ytvos,"  "gens,"  or  "clan."  From  the  multiplication 
of  such  unions  the  tribe  was  born ;  whence  civil  commu- 
nities were  derived. 

§  421 .  The  Modern  View  of  the  Origin  of  Human  Fam- 
ilies. Recent  studies  of  the  oldest  records  and  profound 
researches  into  legends  and  the  customs  of  modern  sav- 
ages have  led  to  the  belief  that  the  patriarchal  family  was 
not  the  beginning  of  society.  It  has  been  demonstrated 
by  these  studies  and  researches  that  at  the  beginning 


636  THE  PRIMITIVE  FAMILY 

there  was  a  horde,  ignorant  of  individual  relationships, 
because  its  members  were  not  considered  as  children  of 
certains  persons,  but  rather  as  children  of  all  the  fathers 
and  mothers  in  the  community.  Only  later  did  the  horde 
break  up  into  smaller  groups  which  began  to  lead  separ- 
ate lives.  From  that  moment  can  be  traced  the  gene- 
sis of  matrimony,  or  the  union,  more  or  less  stable,  of  a 
great  or  less  number  of  individuals,  and  consequently 
the  genesis  of  the  family.  Primitive  families  were  based 
on  maternal  relationship,  because  of  the  customary  un- 
certainty of  the  father's  identity,  and  had  a  feminine 
genealogy,  differing  from  the  patriarchal  family,  which 
developed  in  a  way  which  presupposes  the  certainty  of 
the  father. 

§  422.  The  Maternal  Family  Preceded  the  Paternal. 
As  this  was  the  course  of  development  it  is  clear  that  in 
the  remote  times  of  the  common  ownership  of  women, 
the  right  of  the  horde  must  be  considered  as  the  "jus 
naturae,"  and  that  afterwards  the  "jus  naturae"  was 
the  right  of  the  mother,  through  whom  the  son  of  a 
dead  man's  sister  succeeded  to  his  goods,  and  sometimes 
to  his  political  dignity  or  sacerdotal  office,  together  with 
the  obligation  of  revenge.  It  is  easy  to  understand  that 
the  father's  right  could  be  changed  to  a  natural  right 
only  by  the  slow  and  incessant  development  of  ages. 

§  423.  History  of  Researches  into  the  Origin  of  the 
Family.  It  has  been  said  that  these  studies  were  begun 
in  the  XVI Ith  century  by  Lafitau,  in  his  work  "Les 
Coutumes  des  Sauvages  Americaines,"  and  that  in  the 
XlXth  century  they  were  followed,  extended,  and  sys- 
tematized by  D'Eckenstein,  and  Bachofen  in  his  "An- 
tiquarische  Briefe,"  by  McLennan  in  "Origin  of  Con- 
sanguinity and  Primitive  Conditions  of  Matrimony,"  by 
Morgan  in  "System  of  Consanguinity  and  Affinity,"  by 
Lubbock  in  "Origin  of  Civilization  and  the  Primitive 


VICO'S  THEORY  637 

Condition  of  Man,"  by  Girard-Teulon  in  "Les  Origines 
du  Mariage  et  de  la  Famille,"  by  Spencer  in  his  "Prin- 
ciples of  Sociology,"  and  by  Letourneau  in  "Sociologie 
d'apres  1'Ethnologie."  We  may  add  that  Lafitau, 
D'Eckenstein,  and  Letourneau  furnish  only  data  and 
special  facts,  while  the  others  coordinate  general  philo- 
sophical and  historical  discoveries.  Vico,  however,  has 
been  forgotten,  who,  before  all  the  writers  mentioned, 
published  his  theory,  almost  identical  with  the  modern 
doctrine,  as  we  will  see  in  the  following  paragraph. 
Lucretius  also  has  been  overlooked,  who  in  the  Fifth  Book 
of  his  immortal  poem,  "De  Natura  Rerum,"  in  speaking 
of  the  primitive  ages,  says:  — 

"Et  Venus  in  silvis  jungebat  corpora  amantium: 
Conciliabat  enim  vel  mutua  quamque  cupido, 
Vel  violenta  viri  vis  atque  impensa  libido, 
Vel  pr&lium,  glandes,  atque  arbuta,  vel  pira  lecta. 

And  in  picturing  the  character  of  a  later  date  and  more 
advanced  period,  the  Latin  poet  writes:  — 

"Inde  casas  postquam,  ac  pellets,  ignemque  pararunt, 
Et  mulier  coniuncta  viro  concessit  in  unum: 
Castaque  private  Veneris  connubia  Iceta 
Cognita  sunt,  prolemque  ex  se  videre  creatam: 
Turn  genus  humanum  primun  mollescere  ccepit." 

§424.  Vico'sTheory  of  the  History  of  Family.  Provi- 
dence, teaches  Vico,  at  the  first  beginning  of  nations 
decreed  that  the  strongest  men  of  gigantic  stature 
should  wander  on  the  heights  of  the  mountains  like 
beasts,  which  too  are  strong.  Frightened  by  the 
first  thunderbolts  after  the  Flood,  they  fled  into  caves 
and  surrendered  themselves  to  a  superior  force,  which 
they  called  Jove;  and  though  proud  and  cruel,  they 


638  THE  PRIMITIVE  FAMILY 

humiliated  themselves  in  their  terror  before  a  divinity. 
In  such  a  state  of  human  affairs,  we  can  imagine  no 
other  plan  which  Divine  Providence  could  have  adopted 
to  cure  them  of  their  bestial  vices  in  the  great  forests  of 
the  earth  in  order  to  introduce  the  ways  of  human  civil- 
ization. Thereupon  there  were  formed  republics  called 
monastic,  with  one  ruler  who  was  guided  by  the  Most 
High,  who  they  believed  made  and  hurled  those  thunder- 
bolts in  which  they  saw  the  true  light  of  God,  the 
Ruler  of  mankind.  To  Him  all  things  were  subject. 
They  imagined  the  rulers  to  be  divine.  As  subjects  they 
feared  and  revered  them  as  His  representatives.  There- 
fore, torn  in  the  struggle  between  frightful  superstition 
and  bestial  lust  (in  such  men  most  violent)  and  feeling 
that  the  aspect  of  heaven  was  terrible  to  them  and 
forbade  them  the  use  of  love,  these  men  held  the  prompt- 
ings of  the  lusts  of  the  flesh  in  check.  And  beginning 
to  use  human  liberty,  which  restrains  the  emotions  of 
desire  and  gives  them  the  direction  which  (not  coming 
from  the  body  from  which  desire  comes)  must  come 
from  the  mind,  and  therefore  be  proper  to  man,  their 
nature  was  changed,  and  seizing  the  women,  whose 
nature  was  unwilling  and  resisting,  they  dragged  them 
within  their  caves  and  kept  them  in  life-long  slavery. 
These  unions,  the  first  which  were  modest  and  religious, 
were  the  beginning  of  matrimony,  by  which,  of  known 
women  there  were  born  known  children  by  known 
fathers;  thus  the  family  began.  The  fathers  ruled  with 
Cyclopean  control,  governing  their  children  and  wives 
as  their  unbending  and  cruel  nature  prompted  them. 
Taught  in  such  a  school,  at  the  founding  of  the  cities 
men  were  found  to  fear  the  imperial  edicts.  Providence 
created  certain  economic  governments  of  monarchical 
form  under  the  family  rulers  who  excelled  in  sex,  age, 
and  worth,  in  a  state  which  could  be  called  a  state  of 


VICO'S  THEORY  REVIEWED  639 

nature,  but  which  was  the  patriarchal  age.  They  had 
formed  the  first  natural  states  of  a  religious,  chaste,  and 
binding  order;  and  limited  to  their  own  land,  no  longer 
able  to  wander  over  the  country  as  they  had  done  be- 
fore in  their  savage  ways,  they  had  to  kill  the  beasts 
for  food  for  their  families.  And  since  they  could  no 
longer  wander  to  find  pasturage,  they  had  to  conquer 
the  earth  and  sow  seeds.  And  all  this  was  caused  by 
the  savagery  of  human  nature.  After  a  long  period, 
hunted  down  by  their  own  evil  deeds,  which  were  bring- 
ing about  an  infamous  communion  of  possessions  and 
women,  men  who  were  impious,  with  no  fear  of  God, 
shameless  and  weak,  unbridled  in  incest  and  bestial 
love,  wandering  and  alone  on  the  great  plains  and  in 
the  valleys,  with  their  lives  in  danger  as  the  result  of 
their  infamous  communion,  sought  refuge  with  the 
fathers,  who  received  them  into  their  protection,  to- 
gether with  their  followers,  who  increased  the  family 
kingdoms. 

§  425.  Vico's  Theory  of  the  History  of  the  Family 
Reviewed.  We  can  briefly  repeat  that  part  of  the  con- 
clusions of  the  "Scienza  Nuova,"  of  which  some  frag- 
ments have  been  cited  before  (seriatim)  for  a  different 
reason.  Vico  says  in  the  most  open  manner  that  be- 
fore the  modest  and  religious  human  marriages,  that  is, 
before  matrimony  and  the  family,  of  certain  fathers 
with  certain  mothers  and  certain  children,  there  was 
a  shameful  communion  of  things  and  women  in  which 
impious,  shameless,  and  wicked  men  lived  their 
lives.  This  communion  ended,  says  Vico,  when  they 
forcibly  carried  off  to  their  grottoes  the  unwilling  and 
resisting  women.  The  women  were  not  modest  or 
pure,  but  did  not  wish  to  be  reduced  to  the  service  of 
man.  The  men  were  solitary  sovereigns  or  princes, 
the  heads  of  economic  governments  of  monarchical  form. 


640  THE  PRIMITIVE  FAMILY 

Now  a  kingdom  is  a  derivative  of  strong  control,  as  a 
popular  republic  is  a  derivative  of  freedom,  and  the 
oligarchy  is  a  result  of  protection.  Control,  freedom, 
and  protection  are  the  three  elements  of  the  idea  of  law 
corresponding  to  knowledge,  will,  and  power.  In  Vico's 
judgment  matrimony  is  bound  up  with  the  right  of 
property,  and  does  not  result  from  monarchical  govern- 
ment. It  was  accompanied  by  the  need  of  killing  beasts, 
of  conquering  the  earth,  and  of  sowing  seed  in  order  to 
nourish  the  families  by  which  and  for  which  the  fields 
were  cultivated.  Vico,  however,  is  wrong  in  transform- 
ing the  wild  state  so  suddenly  into  the  age  when  men  were 
modest,  pious,  and  wise ;  thus  the  heroic  age  which  fol- 
lows the  divine  seems  to  be  a  step  in  the  wrong  direction, 
through  which  man  passed  from  the  age  of  shameful 
communion  to  the  times  of  modest  and  religious  mar- 
riage with  certain  fathers,  that  is,  to  the  time  of  the 
patriarchal  family.  Naturally,  Vico,  as  in  his  day 
there  were  not  the  many  aids  from  different  modern 
studies,  did  not  discover  and  could  not  discover  all 
those  factors  found  or  surmised  to-day  by  Bachofen, 
McLennan,  Morgan,  Tyler,  Lubbock,  and  Giraud-Teulon. 
But  the  great  author  of  the  "Scienza  Nuova"  left  the  ques- 
tion open,  so  to  speak,  and  recognized  implicitly  the 
correctness  of  deductions  from  the  customs  of  modern 
savages.  He  taught  that  when  men  can  form  no  idea 
of  distant  and  unknown  things,  they  can  imagine  them 
by  the  aid  of  things  known  and  present.  But  we  must 
not  forget  a  wise  warning  of  Darwin  that  quite  fre- 
quently the  licentiousness  of  savages  is  the  result  of 
decadence. 

§  426.  Modern  Example  of  the  Community  of  Women. 
Bachofen,  McLennan,  Morgan,  Lubbock,  and  Giraud- 
Teulon  agree  with  Lucretius  and  Vico  in  recognizing  a 
primitive  period  of  the  communion  of  women,  and  invoke 


COMMUNION  OF  WOMEN  641 

the  authorities  of  ancient  and  modern  writers.  In 
China,  women  were  common  until  the  end  of  the  reign 
of  Fouhi,  and  in  Greece  until  the  days  of  Cecrops;  the 
Massageti,  Nasimonisans,  and  Auseans  did  not  know 
of  matrimony  according  to  Herodotus  and  Strabo. 
Strabo  and  Solon  say  that  the  Garamantians  were  in 
the  same  condition,  and  Zenophon  adds  to  this  class  the 
Mosynocians,  who  scandalized  the  soldiers  of  Cyrus  by 
their  lack  of  any  sense  of  shame.  The  authors  cited 
adduce  many  facts  to  prove  that  the  most  absolute 
communism  exists  in  some  parts  of  New  Zealand,  South 
America,  of  the  Andaman  and  Nicobar  Islands.  The 
system  is  found,  too,  among  some  negro  people  who 
have  no  family  names  and  distinguish  the  individuals 
only  by  some  peculiarity,  as  "Long"  or  "Lame." 

§  427.  History  Proves  Original  Communion  of 
Women.  Among  the  facts  alleged  as  methods  of  deter- 
mining relationship,  the  homes  and  some  of  the 
strange  nuptial  rights,  which  belong  exclusively  to  the 
system  of  preexistent  community  of  women,  demand 
special  attention.  The  careful  researches  of  Morgan 
show  that  relationship  was  not  originally  between 
individuals,  but  a  relation  between  the  individual  and 
the  tribe.  The  child  at  first  recognized  as  his  fathers 
all  the  adults  of  the  tribe,  and  as  mothers  all  the 
women  of  the  tribe  who  could  have  borne  him.  The 
inhabitants  of  the  Sandwich  Islands,  for  example,  until 
the  last  century,  had  only  five  classes  of  relations.  The 
first  included  the  individual,  his  brothers,  sisters  and 
cousins;  the  second  included  the  father,  mother,  and 
their  brothers,  sisters,  and  cousins,  who  were,  how- 
ever, all  called  fathers  and  mothers;  the  third  con- 
sisted of  the  grandfather,  the  grandmother,  and  their 
brothers,  sisters,  and  cousins,  and  formed  the  class 
of  grandparents;  the  fourth  consisted  of  the  children 


642  THE  PRIMITIVE  FAMILY 

and  their  cousins,  all  recognized  as  children;  the  fifth 
class  included  the  grandchildren  and  their  cousins, 
and  was  the  class  of  grandchildren.  According  to  this 
classification  or  relationship,  all  the  members  of  a  tribe 
were  brothers  and  sisters  to  each  other;  the  uncle  looked 
upon  his  nephew  as  his  son,  and  the  nephew  was  regarded 
as  the  son  of  his  aunt.  In  a  country  where  a  man  calls 
his  nephew  or  niece  his  child,  it  is  reasonable  to  suppose 
that  marriages  are  allowed  between  brothers  and  sisters. 
Travelers  say  that  the  missionaries  encounter  the  greatest 
difficulty  in  those  islands  in  teaching  the  women  chas- 
tity. Adultery,  incest,  and  fornication  are  sanctioned 
by  custom  and  religion.  In  conclusion  we  may  add  that 
incest  was  a  general  rule  in  antiquity,  as  can  be  seen 
from  the  fact  that  the  gods  and  heroes  married  their 
sisters.  The  Egyptians  and  Persians  imitated  this  cus- 
tom. Diodorus  says  that  the  Egyptian  king  was  in 
duty  bound  to  marry  his  sister;  Plato  testifies  that  the 
Pythian  oracle  held  such  a  union  legal  and  proper  accord- 
ing to  the  laws  of  nature.  The  other  fact  worthy  of 
study  is  the  houses  situated  in  the  Indian  territories 
of  the  central  and  southern  United  States.  From  one 
hundred  to  one  hundred  and  fifty  feet  long,  they  are 
capable  of  giving  shelter  to  forty  or  fifty  families,  that 
is,  to  three  or  four  hundred  persons.  The  huge  cabin 
of  the  Indians  of  Columbia  could  hold  a  hundred  people, 
and  there  are  villages  in  that  country  which  consist  of 
one  or  two  houses  of  this  size.  Mexico,  the  regions  of 
Yucatan  and  of  Guatamala,  were,  before  the  arrival 
of  Europeans,  full  of  such  villages,  which  furnish 
good  testimony  of  the  promiscuity  of  life.  The  early 
Spaniards  who  discovered  these  countries  believed 
these  constructions  were  palaces. 

§  428.     Traces  of  Primitive  Promiscuity  in  Many  Mar- 
riage  Rites.     When    the    exclusive   possession    of    one 


PRIMITIVE  PROMISCUITY  643 

woman  by  one  man  appears  in  history,  we  must  con- 
sider whether  this  institution  of  positive  law  violates 
and  is  contrary  to  the  primitive  law  of  the  community 
called  the  "jus  naturae."  It  was  recognized  as  an  in- 
fraction of  natural  and  religious  law  because  the  fecun- 
dity of  women  like  that  of  the  earth  or  the  Great 
Mother  should  not  suffer  limitations,  whence  arose  the 
need  of  a  tribute  to  be  paid  to  the  offended  deity 
and  of  an  expiation  to  be  rendered  to  the  gods;  trib- 
ute and  expiation  consisting  in  enforcing  a  period  of 
provisional  promiscuity  on  the  woman  to  be  married. 
The  old  customs  show  this,  which  are  found  in  strange 
and  scandalous  cults,  celebrated  in  homage  of  the  god, 
protector  of  fecundity.  The  Lydians,  Sardinians,  and 
Babylonians  made  a  sacrifice  of  their  chastity  before  the 
wedding  (as  Herodotus  and  Strabo  report),  and  in  crises 
all  the  women  of  war  were  forced  to  offer  their  shame 
as  an  expiation  to  placate  the  divinity  outraged  by  their 
violation  of  the  marriage  law  of  nature.  The  magis- 
trate of  Locros  demanded  in  a  day  of  public  danger  the 
sacrifice  of  the  chastity  of  the  women  in  the  Temple  of 
Venus.  Strabo  himself  says  that  the  daughters  of  good 
family,  who  devoted  themselves  for  a  certain  time  to  the 
cult  of  Anaitis,  were  most  sought  after  as  wives;  that 
such  expiation  was  necessary  in  Armenia  and  in  some 
parts  of  the  Island  of  Cyprus.  Herodotus  speaks  of  the 
same  custom  among  the  Thracians.  And  Diodorus  Sic- 
ulus  states  that  in  the  Balearic  Islands,  at  Majorca  and 
Minorca  and  in  other  places,  the  bride  for  the  first  night 
belongs  to  all  the  guests.  In  the  Mahabharata,  we  read 
that  women,  like  cattle,  were  held  in  common,  and  that 
Cwetaketom  was  the  first  to  introduce  private  possession. 
In  India  there  is  a  religious  sect  called  "Vira-Sriva," 
that  hold  men  equal  by  the  "lingam."  The  priestesses  of 
Siva  and  Krishna  obey  the  same  religious  commands,  and 


644  THE  PRIMITIVE  FAMILY 

their  depravity  is  famous.  In  that  country  a  woman  with- 
out a  husband  and  a  widow  can  sacrifice  to  the  idol  in  a 
temple  of  Tulava,  but  from  the  moment  of  sacrifice  is 
forced  to  give  herself  to  all.  Strabo  says  on  this  subject 
that  a  Parthian  who  has  had  two  or  three  children  by  one 
woman  can  leave  her  and  marry  another.  To-day  the 
Eskimos  and  Indians  of  North  and  South  America,  the 
tribes  of  Polynesia  and  Australia,  the  negroes  of  East 
and  West  Africa,  like  the  Caffirs,  give  their  guest  tempo- 
rarily some  of  their  wives.  Some  Brazilian  tribes  do  the 
same  for  their  prisoners  of  war  whom  they  can  kill  and 
eat.'  Among  the  ancient  Peruvians,  in  Ethiopia  and  even 
now  among  many  aboriginal  tribes  of  India,  in  Burma, 
Cashmir,  southern  Madagascar  and  New  Zealand,  the 
bride  belongs  for  the  first  night  to  all  the  relatives  and 
friends.  In  some  parts  of  India,  in  ancient  Abyssinia, 
among  some  classes  in  Brazil  and  Peru,  this  "jus  primae 
noctis"  is  exercised  by  the  chieftain  and  priests.  In  the 
primitive  nations  of  Greece,  which  were  in  closer  relations 
with  Asia,  —  Corinth  for  example, — there  were  a  special 
body  of  priestesses  with  the  object  of  forcing  their  fellow- 
women  to  the  sacrifice  of  their  shame.  Courtesans 
are  treated  with  great  regard  in  some  societies  because 
they  continue  an  old  custom,  sanctioned  by  religion.  The 
constant  discussion  of  poetry,  philosophy,  and  politics 
developed  the  ideas  and  taste  of  Athenian  courtesans. 
Their  houses  became  the  places  of  profitable  leisure. 
Who  does  not  know  that  Socrates  argued  with  them  and 
that  Pericles  was  often  in  the  house  of  Aspasia?  In 
India,  Abyssinia,  and  Java,  they  enjoy  a  good  name  and 
are  treated  with  respect.  All  these  facts  disprove  Spen- 
cer's claim  that  the  primitive  community  of  women  con- 
tained no  legal  idea. 

§  429.     Love   a  Later   Development.      The    primitive 
unions    must   have   been    without   sentiment    or    love. 


LOVE  A  LATER  DEVELOPMENT          645 

They  consisted  in  animal  intercourse,  being  founded 
on  the  slavery  of  "women.  They  must  have  been 
temporary  and  completed  without  rites,  if  we  argue 
from  the  union  of  modern  savages.  Lubbock  gets  to- 
gether the  different  reports  from  all  travelers  on  this 
point  and  teaches  things  of  no  small  interest  for  our 
theme.  Hottentots  and  Caffirs  are  so  cold  and  indiffer- 
ent as  to  induce  those  who  have  studied  their  customs 
to  affirm  that  there  is  no  love  in  their  union.  There  are 
Indian  tribes  in  both  Americas  who  have  no  word  for 
"fear,"  and  there  are  several  languages  which  have  no 
verb  "to  love."  Missionaries,  in  translating  the  Bible 
into  these  languages,  are  forced  to  invent  a  vocabulary 
to  express  this  idea.  Among  the  Osages  and  Cherokees, 
there  cannot  be  found  a  single  poetical  or  musical  expres- 
sion that  reveals  love.  At  Yariba  in  central  Africa,  the 
natives  marry  with  the  greatest  indifference,  as  if  they 
were  engaged  in  buying  or  selling  grain.  The  tribes  in- 
habiting the  hills  in  Chittegong  (India)  look  upon  matri- 
mony as  simply  a  bodily  union  and  a  utility  or  means  of 
getting  their  food  cooked.  The  young  men  in  Australia 
pay  the  women  for  the  quality  of  services  they  can  ren- 
der. They  are  treated  with  the  greatest  brutality,  being 
beaten  and  struck  with  spears  upon  every  occasion. 
Travelers  have  seen  women  with  their  backs  entirely 
covered  with  scars.  In  some  parts  of  Paraguay  and  Abys- 
sinia, the  marriage  bonds  are  so  light  that  the  husband 
and  wife  can  separate  upon  mutual  consent.  They  have 
no  sense  of  shame  according  to  the  stories  of  all  the  trav- 
elers. The  Hassaniyeh  Arabs  have  a  form  of  matri- 
mony which  lasts  three  days;  on  the  fourth,  the  woman 
is  entirely  free.  In  Ceylon  they  have  trial  marriages 
for  five  days ;  at  the  end  of  this  time  the  marriage  can  be 
annulled  or  confirmed.  Among  certain  tribes  of  south- 
ern India,  girls  of  fifteen  or  twenty  years  are  married 


646  THE  PRIMITIVE  FAMILY 

to  boys  of  five  or  six.  The  girl  lives  with  her  father-in-law 
or  with  a  maternal  uncle  or  cousin.  '  If  there  are  children 
of  that  union,  the  boy  is  the  legal  father,  who  in  his  turn 
has  issue  by  a  woman  married  to  some  other  child,  his 
own  children  being  half  grown.  In  almost  all  marriages 
between  savages  there  is  a  dearth  of  rites  or  ceremonies. 
The  Badagas  of  Hindustan,  the  Kirumbas,  a  tribe  living 
in  the  hills  of  Nilgherry,  the  Keriahs  of  central  India, 
the  Indians  of  California,  the  Kutchin  Indians,  the  Red- 
skins of  the  United  States,  the  Asawaks  of  South  America, 
the  tribes  of  Australia  and  Brazil,  the  people  of  Abys- 
sinia, of  West  Africa,  the  Ashantis  and  Hottentots,  have 
no  witnesses,  magistrates,  or  priests  for  a  wedding,  but 
reserve  them  for  the  ceremonies  accompanying  circum- 
cision and  tattooing.  Montesquieu  is  wrong,  therefore, 
when  he  says  that  in  all  ages  marriage  has  been  a  reli- 
gious ceremony. 

§  430.  Development  from  Promiscuity  and  Monogamy. 
It  is  probable  that,  as  time  went  on,  the  system  of 
communion  was  restricted  by  means  of  maternal  rela- 
tionship; thus  the  family  was  created,  that  at  first  was 
formed  by  the  mother,  the  father  being  generally  un- 
known. The  family  began  to  be  formed  through 
the  mother.  The  name  of  the  mother  alone  descended 
and  the  husband  represented  only  a  secondary  con- 
sideration. Now,  matriarchy,  although  unilateral,  is 
always  superior  from  an  ethical  and  civil  point  of  view 
to  generic  relationship,  which  is  a  relation  between  the 
individual  and  the  community  and  excludes  the  family 
as  a  particular  and  distinct  society.  Bachofen  regards 
the  passage  from  communion  to  matriarchy  as  a  revolt 
by  the  women  who  were  ashamed  of  their  state  and 
succeeded  in  gaining  supremacy.  He  calls  the  second 
state  material,  and  the  third,  or  the  period  of  paternal 
rights,  in  which  the  father  is  recognized  as  the  author 


SANDWICH  ISLAND  EXAMPLE  647 

of  life,  and  the  mother  as  the  nurse,  the  spiritual  period. 
It  seems  that  Bachofen  is  right  in  calling  the  second 
period  material,  because  in  it  the  family  appears  on  its 
natural  foundation.  But  we  believe  him  wrong  in  stating 
that  the  cause  of  the  change  from  the  first  to  the  second 
state  was  a  revolt  by  the  women,  because  we  cannot  be- 
lieve that  in  those  barbarous  times,  the  sense  of  shame  and 
unity  of  action  should  have  been  so  developed  among 
women  as  to  allow  a  determined  reaction  to  conquer  the 
men  who  were  the  stronger.  The  legend  of  the  Amazons, 
so  general  and  extensive,  has  probably  been  formed 
through  a  fantastic  attraction  of  the  existence  of  women 
familiar  with  politics.  Bonghi,  in  his  "Lezioni  di  Storia 
Antica,"  says  that  popular  fancy  has  thus  drawn  the 
change  from  the  feminine  rule  to  masculine,  from  the 
two  different  states  of  the  family.  It  was  believed  the 
rule  of  the  women  preceded  that  of  the  men,  and 
that  the  women,  when  heads  of  the  family,  were  heads  of 
the  State  as  well. 

§  431.  The  Sandwich  Island  Example.  The  transi- 
tion from  the  system  of  community  to  that  of  matri- 
archy is  clearly  illustrated  by  the  natives  of  the 
Sandwich  Islands.  Communion  in  these  islands  is 
becoming  restricted,  and  the  union  of  brothers  and 
sisters  are  few.  On  one  hand,  the  brothers  begin  by 
owning  women  in  common;  on  the  other,  the  sister  lives 
in  more  easily  broken  conjugal  relations  with  a  certain 
number  of  men.  In  the  last  century,  there  has  been  a 
great  change,  because  the  family  of  feminine  relationship 
has  been  instituted.  The  system  of  relationship  through 
women  still  exists  in  Australia,  in  the  Ladrone  Islands, 
in  Fiji  and  Tonga,  and  in  other  parts  of  the  Pacific  Archi- 
pelago; in  the  Caroline  Islands,  among  the  people  who 
live  between  Burma  and  Siam,  in  some  of  the  tribes  of 
Ceylon,  in  the  Maldives,  upon  the  coasts  of  Malabar, 


648  THE  PRIMITIVE  FAMILY 

among  some  of  the  primitive  peoples  of  India,  among  the 
greater  number  of  the  Indians  of  North  America,  among 
the  Arawaks  of  South  America,  in  Senegal,  in  Loango, 
in  Congo,  among  the  Herreros  and  Caffirs,  on  the  coasts 
of  Guinea,  and  among  the  Touareng. 

§  432.  Example  of  Ancient  Matriarchy.  The  ancient 
Iberians,  the  primitive  people  of  Asia  Minor,  the  Ly- 
cians,  according  to  Herodotus,  the  inhabitants  of 
Locros,  according  to  Polybius,  and  the  Etruscans,  who 
have  left  mortuary  inscriptions  with  the  name  of  the 
mother  and  not  the  name  of  the  father  of  the  deceased, 
lived  under  the  same  system.  There  are  bilingual 
Etruscan  inscriptions  which  give  the  name  of  the  de- 
ceased and  of  his  or  her  mother,  as  in  the  following 
examples:  "L.  Caius  Caulia  natus;  Thania  Sudernia 
nata."  In  other  inscriptions,  there  is  found  the  name 
of  the  mother  alone  and  not  that  of  the  deceased,  for 
example,  "Perrica  natus."  There  are  still  others  to 
which  there  is  added  a  Latin  translation  which  does 
not  contain  the  name  of  the  father.  This  addition  is 
a  result  of  Roman  custom  or  of  the  personal  knowledge 
of  the  lapidary,  as  Corssen  says,  in  his  book,  "Ueber  die 
Sprache  der  Etrusker."  In  the  museum  at  Naples 
the  only  bilingual  Etruscan  inscription  is  of  the  last 
kind:  "VI,  Alfni  Nuvi  Cainal."  This  Corssen  trans- 
lates, "Velus  Albinus  Novius  Caina  (mother)  natus." 
Cainal  is  a  feminine  proper  name  found  in  twelve  other 
inscriptions.  The  Latin  translation  of  the  inscription  is 
as  follows:  "C.  Alfius  A.  F.  Cainnia  natus."  Writing 
this  verse  in  full  we  have,  "Caius  Alfius  Auli  filius  Cain- 
nia natus."  Herodotus  observes  that  in  Egypt  the 
women  took  part  in  public  life,  carrying  on  business  and 
managing  industries,  while  the  men  stayed  at  home  and 
did  the  weaving.  Diodorus  adds  that  among  the  many 
benefits  of  Isis,  the  Egyptian  queen  had  more  power 


ANCIENT  MATRIARCHY  649 

and  was  more  respected  than  the  king,  and  that  a 
private  citizen  was  part  of  his  wife's  property  according 
to  the  terms  of  the  nuptial  contract.  Many  mortuary 
inscriptions  in  Egypt  contain  the  name  of  the  mother 
and  not  that  of  the  father  of  the  deceased,  and  if  they 
give  the  name  of  the  latter,  they  always  give  the  name 
of  the  mother  too.  In  fact,  Isis  is  represented  as  the 
immortal  beginning  of  things,  the  great  life-giving 
divinity,  while  Osiris  was  the  principle  of  fecundity, 
but  was  only  temporary  and  mortal.  With  the  im- 
portance of  Isis  came  the  power  of  the  sister-wives  of 
the  Pharaohs  and  the  legal  duty,  reported  by  Herodotus, 
of  the  sons  and  daughters  to  support  their  aged  parents. 
Similar  relations  between  the  sexes  is  found  in  the 
countries  of  Angola,  among  the  Timannians,  the 
Kurankos,  the  Sulimas,  among  the  Bazes  of  southern 
Egypt,  among  the  Bogos  and  the  Beni-Amer.  And 
the  great  power  of  the  queen  or  sister-wife  is  found 
to-day  in  the  greater  number  of  the  African  kingdoms  in 
which  by  the  side  of  the  chief  there  is  a  woman  given 
the  dignity  of  "makonda,"  a  dignity  and  power  generally 
belonging  to  the  chief's  sister  who  is  at  the  same  time 
his  chief-wife.  In  ancient  Athens,  according  to  Varro, 
in  a  passage  preserved  by  St.  Augustine,  the  children 
received  the  name  of  the  mother.  In  the  Orestes  of 
^Eschylus  there  is  preserved  a  mark  of  relationship 
through  the  mother,  because  the  Erinnyes,  representing 
the  old  law,  demand  the  condemnation  of  Orestes,  the 
murderer  of  his  mother,  by  saying  that  Clytemnestra 
was  no  relation  of  her  son,  though  the  blood  of  the 
man  who  had  been  murdered  and  Apollo,  the  champion 
of  the  new  law,  implore  mercy  for  Orestes,  claim- 
ing that  the  mother  was  not  the  creator  of  her  son, 
but  the  nurse  of  the  seed  placed  in  her  breast.  The 
Erinnyes  interrupt  the  discourse  and  say  that  the 


650  THE  PRIMITIVE  FAMILY 

young  god  wishes  to  destroy  the  old  law,  and  there- 
fore the  old  gods. 

§433.  Inheritance  where  the  Genealogy  is  Maternal. 
As  we  have  observed  before,  in  those  countries  where 
there  is  a  feminine  genealogy,  the  son  of  a  man's  sister 
and  not  his  own  is  his  heir.  Such  was  the  law  of  inherit- 
ance among  the  Ethiopians,  according  to  the  statement  of 
Herodotus  and  Strabo.  The  Mahabharata  tells  of 
King  Vasuki,  who  wanted  an  heir  and  defender. 
This  prince  did  not  think  of  taking  unto  himself  a  wife, 
but  sought  a  husband  for  his  sister,  who  was  a  man 
marked  by  the  gods,  to  lay  with  the  bride  but  one  night, 
and  in  due  time  the  hero  Astika  was  born,  who  was  the 
king's  heir.  The  legend  of  the  Mahabharata  shows  that 
the  same  law  of  inheritance  existed  in  India  in  the 
same  form  that  it  to-day  holds  among  the  natives. 
It  is  still  existent  in  Nubia,  in  the  Soudan,  in  Negrizia, 
on  the  coasts  of  New  Guinea,  along  the  lakes  and  streams 
of  East  Africa,  and  along  the  Zambese,  among  the  Bas- 
sutos,  the  Tourarengs,  the  Herreros,  in  Madagascar, 
among  the  Bogos,  Battas  of  Lunatra,  and  on  certain 
islands  of  the  Pacific,  with  the  Tlinkithes,  the  Kenayes 
of  Russian  America,  in  Mexico,  in  Peru,  among  the 
Indian  tribes  of  North  America,  and  in  Malabar.  In 
Africa,  the  son  inherits  from  his  father  only  his  weapons. 
In  Madagascar,  among  the  Touarengs,  the  Herreros, 
and  among  the  Redskins,  a  son  of  a  sister  inherits 
the  political  dignity  and  sometimes  the  sacerdotal 
duties  of  his  uncle  under  this  system  of  relationship. 
The  duty  of  revenge  follows  the  feminine  genealogy 
where  the  latter  exists,  and  falls  to  the  lot,  not  of  the 
son  of  the  murdered  man,  but  to  his  maternal  nephews. 

§  434.  Endogamy  and  Exogamy.  If  humanity  has 
developed  from  the  state  of  communion  to  a  period 
of  relationship  by  means  of  women,  it  is  logical  to  pre- 


ENDOGAMY  AND  EXOGAMY  651 

sume  that  the  first  tribes  or  groups  of  relatives  were 
constituted  under  the  system  of  descent  from  woman 
to  woman.  McLennan  thinks  that  the  organic  prin- 
ciple of  the  tribe  (in  the  oldest  antiquity)  has  been 
exogamy,  that  is,  the  prohibition  of  marriage  between 
individuals  of  the  same  totem.  Exogamy  must  owe 
its  existence  to  marriage  by  capture,  and  the  capture 
was  at  first  actual  and  real,  later  symbolic.  He  has 
found  exogamy  in  China,  Siberia,  Tartary,  India, 
Circassia,  in  both  the  Americas,  Australia,  the  Islands 
of  the  Pacific,  among  the  Celts,  and  in  Scotland. 
The  law  had  little  regard  for  women  among  primitive 
people  who  used  to  kill  whatever  girls  were  born,  look- 
ing upon  them  as  a  cause  of  weakness  likely  to  become 
later  an  incentive  for  attacks  by  their  neighbors.  It 
seems  to  us  that  this  doctrine  sheds  much  light  on  cer- 
tain facts  which  have  been  but  little  understood  until 
our  own  day.  Exogamy  produces  rapid  changes  of 
nationality  without  immigration  or  war  because  the 
mother  is  of  a  hostile  tribe.  It  furnishes  us  the  reason 
of  the  custom  that  the  Redskins,  for  example,  have 
of  calling  a  woman's  son  the  son  of  her  brother  and  the 
nephew  the  son  of  the  sister.  The  Chinese  still  call 
boys  the  children  of  their  uncle,  and  the  nephews,  de- 
scendants of  their  aunt.  It  is  clear  that  where  exogamy 
prevails  promiscuity  is  restricted,  and  thus  a  great 
progress  is  made  because  there  can  be  no  marriage  be- 
tween brother  and  sisters ;  but  the  promiscuity  does  not 
cease,  as  is  often  argued  from  this.  It  forces  us  to  wonder 
at  what  period  these  marriages  of  brothers  and  sisters 
disappeared.  As  a  natural  consequence  of  the  necessity 
which  brought  about  exogamy,  the  idea  of  incest  was 
born,  which  made  its  appearance  in  strange  forms. 
In  Ceylon,  the  father  is  forbidden  to  look  at  his  own 
daughter  after  she  has  reached  the  age  of  puberty, 


652  THE  PRIMITIVE  FAMILY 

and  the  same  prohibition  is  placed  upon  the  mother  in 
respect  to  her  son.  In  Asia,  among  the  Mongols,  in 
Africa,  among  the  Bassutos,  the  daughter-in-law  must 
hide  when  she  sees  her  father-in-law.  Among  the  Ara- 
waks,  a  man  is  not  allowed  to  look  at  his  mother-in-law. 
Among  the  Caffirs  and  Redskins,  the  latter  cannot 
pronounce  the  name  of  her  son-in-law.  In  the  Fiji 
Island,  the  brothers,  sisters,  cousins,  parents,  and  chil- 
dren-in-law  cannot  speak  nor  eat  together.  There  are 
analogous  customs  in  Australia,  India,  Borneo,  and 
West  Africa.  Lubbock  believes  that  marriage  by  cap- 
ture could  coexist  and  did  coexist  with  the  system  of  com- 
munion. But  marriage  by  capture  has  probably  been 
the  beginning  of  individual  marriages.  The  woman 
stolen  from  another  tribe  became  by  right  of  war  the 
exclusive  property  of  the  captor.  From  this  Lubbock 
argues  that  exogamy  is  the  result  of  capture,  while 
McLennan  looks  upon  it  rather  as  the  cause.  The 
former  disagrees  with  the  latter  upon  the  alleged  motive 
of  exogamy  because  infanticide  was  not  limited  to  the 
girls,  but  extended  as  well  to  the  boys,  as  it  does  in  Aus- 
tralia. Besides,  there  are  some  tribes  who  have  mar- 
riages by  capture  and  at  the  same  time  are  endogamous ; 
the  Bedouins,  for  example,  recognize  the  right  of  mar- 
riage by  capture,  and  can  at  the  same  time  marry  a 
cousin  upon  the  payment  of  a  certain  fine.  Giraud- 
Teulon  does  not  think  that  the  murder  of  the  girls  was 
a  cause  of  exogamy,  because  the  custom  of  infanticide 
must  have  been  common  and  reciprocal  to  the  various 
tribes,  and  therefore  would  have  rendered  exogamy  and 
capture  impossible.  Spencer  adds  that  the  murder  of 
the  girls  must  have  been  equalized  by  the  great  mortal- 
ity of  the  young  men  in  the  almost  constant  state  of 
war.  He  adds  that  polyandry,  the  consequence  of 
McLennan's  theory,  does  not  always  accompany  exog- 


GENEALOGY  653 

amy.  Spencer  tries  to  base  exogamy  upon  a  theory  of 
booty,  because  the  woman  is  one  of  the  main  objects 
to  be  taken  from  the  enemy,  and  such  is  the  purpose  of 
the  warriors.  Since  the  warriors  were  the  most  impor- 
tant men  in  the  community,  the  practice  of  marrying 
foreign  women  became  general,  and  acquired  a  religious 
sanction.  Endogamy  is  found  among  the  peaceful 
tribes,  while  exogamy  is  found  in  the  warlike  and  vic- 
torious ones;  but  how  could  it  happen,  we  must  ask 
Spencer,  that  the  warlike  tribes  of  New  Zealand  are 
endogamous?  But  in  whatever  way  we  look  at  it,  it  is 
certain  that  there  was,  in  the  age  of  which  we  speak,  a 
necessity  of  obtaining  by  capture  the  women  of  another 
tribe.  In  fact,  without  this  necessity,  the  men  would  not 
have  at  great  risk  of  life  sought  their  wives  from  the 
enemy.  The  capture  at  first  is  brutal  and  ferocious,  as  in 
Australia,  New  Zealand,  some  of  the  islands  of  the  Paci- 
fic and  South  America.  The  men  of  Australia,  when 
they  discover  a  woman  without  protection,  stun  her  with 
a  blow  of  a  "dowak,"  drag  her  by  the  hair  to  the  neigh- 
boring brush,  and  wait  until  the  poor  creature  comes  to 
herself.  So  it  is  in  the  country  around  Sidney,  at  Bally, 
and  in  other  places.  Later  on,  the  capture  acquires  a 
symbolic  form;  as  a  symbol  it  exists  in  India,  in  the 
interior  of  Asia,  among  the  Malasians,  in  Africa,  and 
among  the  ancient  Greeks  and  Romans. 

§  435.  Maternal  Genealogy  is  Physical,  the  Paternal, 
Spiritual.  The  relationship  by  means  of  women,  being 
derived  from  a  physical  certainty,  should  appear  as 
an  institution  of  natural  law.  On  the  contrary,  the 
relationship  by  means  of  men  should  be  regarded  as  a 
creation  of  civil  law,  because  it  presupposes  a  free 
recognition  of  the  bonds  of  relationship,  a  voluntary 
and  reflective  act  which  is  connected  with  an  abstract 
presumption.  A  child  can  only  be  the  child  of  one 


654  THE  PRIMITIVE  FAMILY 

woman,  but  it  may  be  the  child  of  any  of  several  men. 
If  the  relationship  by  means  of  men  requires  reflective 
acts  and  abstract  presumptions,  it  is  evident  that  it  must 
be  posterior.  The  sentiment  of  paternity  in  its  origin  has 
not,  nor  can  it  have,  a  character  truly  ethical.  Pater- 
nity at  first  was  a  relation  of  slavery  and  later  became  a 
method  for  the  acquisition  of  wealth  among  modern  sav- 
ages, as  it  is  with  those  that  live  on  the  coast  of  Guinea. 
The  father  himself  is  often  seen  selling  his  own  children 
as  slaves  and  the  children,  when  grown,  ambush  the 
father  and  sell  him  in  his  turn  with  the  greatest  pleasure. 
In  some  countries  in  South  Africa,  the  children  are  con- 
sidered animals  to  be  given  as  food  to  the  wild  beasts, 
and  the  natives  protect  themselves  from  lions  by  making 
traps,  with  babies  as  bait. 

§  436.  Wide  Extent  of  Polyandry.  It  seems  that 
the  collection  of  a  group  around  a  man  was  not  always 
personal;  polyandry  among  brothers  is  a  proof  of  this. 
And  polyandry  is  not  a  result  of  poverty  because  it 
existed  in  rich  tribes  or  among  rich  individuals  of  the 
tribes.  If  not  universal,  it  was  most  extensive,  to  judge 
from  the  traces  of  it.  For  example,  the  five  brothers 
Pandava,  heroes  of  the  Mahabharata,  all  married  the 
beautiful  Draupadi.  The  Bretons  lived  in  polyandry, 
according  to  Caesar.  To-day,  polyandry  is  found  in  Asia ; 
Thibet,  Buchavia,  in  the  Himalayas,  in  Cashmir;and  on 
the  coasts  of  Malabar,  in  Ceylon,  New  Zealand.  Among 
the  inhabitants  of  Thibet,  the  children  and  goods 
belong  to  the  head  of  the  family,  and  descend  by 
right  of  primogeniture.  Among  the  Todas,  the  first 
born  is  given  to  the  primogenitus ;  the  second  child 
is  assigned  to  the  second  eldest  of  the  brothers.  A 
man  among  a  polyandrous  race  who  has  no  brother 
associates  with  some  stranger,  or  if  he  does  not  so 
desire,  remains  single. 


PATERNITY  655 

§  437.  Paternity  a  Derivation  of  the  Right  of  Property. 
Paternity  is  shown  in  history  when  there  is  established 
an  individual  control  in  the  form  of  matrimony.  That  pa- 
ternity is  a  derivation  of  the  right  of  ownership  is  proved 
by  divers  facts.  One  of  these  proofs  is  found  in  the  an- 
cient Aryan  language.  A  father,  in  Sanscrit,  is  called  a 
"patar,"  owner,  or  "ganitor,"  creator.  In  the  Vedas  the 
two  terms  are  joined,  forming  "pitaganita."  Such  a 
conjunction  and  later  such  a  confusion  of  the  conceptions 
in  the  language  are  sure  indications  of  the  influence  of 
property  rights  in  the  development  of  the  masculine 
family.  And  here  we  must  notice  that  a  man  can  become 
for  a  certain  time  a  woman's  master  in  two  ways,  by 
right  of  conquest,  or  by  bargain  and  sale.  In  a  warlike 
tribe,  the  captor  of  a  woman  of  another  tribe  makes  her 
his  own,  like  any  other  booty,  by  virtue  of  the  capture. 
And  in  this  connection,  we  must  note  what  Lubbock 
says  of  the  possibility  of  the  coexistence  of  individual 
marriages  and  community  of  wives.  In  other  tribes,  the 
masculine  family  was  brought  about  through  bargain 
and  sale,  because  woman  was  considered  part  of  the  fam- 
ily's property,  and  always  remained  part  of  the  inherit- 
able estate.  The  family  sold  a  right  of  use  but  did  not 
sell  the  women.  The  husband,  therefore,  had  to  stay  in 
the  cabin  and  village  of  his  wife's  family.  In  Sumatra, 
the  husband  and  his  descendants  became  the  absolute 
property  of  his  wife's  family,  if  the  marriage  was  cele- 
brated in  a  form  called  "ambel-anak,"  now  fallen  into 
disuse.  Not  very  dissimilar  customs  existed  among  the 
Kochs  of  India,  in  Ceylon,  and  ancient  China.  Clearly, 
the  difficulties  in  the  way  of  getting  a  wife  in  the  primitive 
ages,  when  poverty  was  all  supreme,  were  many.  Often 
the  price  of  a  wife  was  temporary  slavery  in  the  house 
of  the  father-in-law,  such  as  Jacob  spent  in  the  house  of 
Laban,  and  as  it  still  is  in  Asia,  Africa,  and  the  two  Amer- 


656  THE  PRIMITIVE  FAMILY 

icas.  In  some  tribes  of  American  Indians,  the  husband 
is  forced  to  move  into  his  father-in-law's  house,  but  can 
have  his  own,  if  he  pays  a  tribute  from  the  hunt  until  a 
daughter  is  born.  This  child,  who  becomes  the  property 
of  his  maternal  uncle,  completes  the  price  due  from  her 
mother.  Among  the  Makololos,  the  southern  Kimbundas, 
and  some  races  of  the  Gold  Coast,  at  Timon  and  among 
the  Limbus  of  India,  the  price  of  the  mother  does  not 
include  the  children,  who  must  be  bought  separately, 
if  the  father  wishes  to  keep  them.  Along  all  the  coast  of 
Guinea,  and  among  several  African  tribes,  the  law  for- 
bids the  acquisition  of  a  son  by  his  father.  His  life  and 
liberty  depend  absolutely  upon  the  caprice  of  his  mater- 
nal uncle.  It  can  be  easily  seen  that  the  masculine  fam- 
ily by  right  exists  from  the  moment  when  the  purchase 
of  the  mother  includes  the  children.  According  to  the 
ways  and  law  of  the  Kimbundas,  the  Fellatahs,  and  of 
the  kingdom  of  Fanti,  the  only  way  in  which  a  man  can 
possess  his  own  wife  or  daughter  is  by  union  with  a  slave. 
In  such  a  case,  he  has  true  power  over  his  wife  and  de- 
scendants, and  his  personalty  is  not  inherited  by  children 
of  a  legitimate  wife,  but  by  the  children  of  the  slave,  or 
if  she  has  none,  by  adopted  children.  The  union  of  the 
owner  and  his  slave  is  a  symptom  of  deep  alteration  in 
the  marriage  states  in  several  African  peoples.  There 
is  a  marked  tendency  to  such  unions,  as  man  wants  to 
rule  and  not  to  be  ruled.  For  women  of  such  races  are 
absolute  masters  of  their  husbands  and  their  children 
who  received  their  name.  They  control  all  their  husband's 
acts.  The  unfortunate  husbands  have  no  means  of  oppos- 
ing the  conduct  of  their  wives,  who  follow  their  own  way, 
and  exercise  an  absolute  supremacy. 

§  438.  Symbolic  Recognition  of  Paternity.  In  the 
primitive  world  abstract  ideas  cannot  prevail  because 
the  intellect,  at  the  beginning,  departs  but  little  from 


DIFFERENT  TYPES  657 

the  senses,  and  is  bound  to  the  particular.  And  so 
when  the  notion  of  paternity  had  appeared,  the  general 
presumption  of  the  maxim,  "Pater  est  is  quem  nuptiae 
demonstrant,"  was  not  immediately  applied.  But  there 
was  had  recourse  to  a  symbol  peculiar  to  an  uncivilized 
and  mute  age;  the  father  had  to  imitate  the  pains  of 
childbirth,  thus  making  himself  another  mother.  Strabo 
states  that  this  was  the  practice  of  the  Iberians ;  Apol- 
lonius  reports  this  custom  among  the  savages  living 
around  the  Black  Sea;  Diodorus  and  Plutarch  attribute 
it  to  the  islanders  of  Corsica  and  Cyprus;  Marco  Polo 
found  it  in  eastern  Asia;  and  to-day,  we  find  it  still  in 
South  America  and  on  the  west  coast  of  Africa.  In 
lower  Guinea  and  in  some  other  places  there  is  a  ceremony 
of  the  mixture  of  the  blood  by  which  an  apparent  con- 
sanguinity is  established  and  the  paternity  is  recog- 
nized. This  ceremony  consists  in  making  a  few  drops 
of  the  blood  from  the  veins  of  one  pass  into  the  veins  of 
the  other,  by  two  slight  incisions,  and  by  drinking  a  drop 
or  so.  This  mixture  of  the  blood  is  called  "fatti 
draha"  in  Madagascar. 

§  439.  Different  Types  of  the  Patriarchal  Family. 
The  patriarchal  type  developed  among  the  Semites  in 
the  Hebrew  family,  among  the  Aryans,  the  associated 
Indian  family,  in  the  Hellenic  ytvos,  in  the  Roman  ag- 
native  family,  in  the  Celtic,  "sept,"  in  the  Teutonic  and 
Slavic,  domestic  community.  Maine,  in  his  "Lectures 
on  the  Early  History  of  Institutions,"  explains  with 
clearness  and  precision  the  formation  of  the  Irish  "sept" ; 
and  in  his  "Dissertations  on  Early  Law  and  Custom," 
he  outlines  the  early  domestic  communities  of  eastern 
Europe,  availing  himself  of  Bogisc's  important  discoveries. 
The  Irish  family  is  divided  into  four  classes,  "geilfine," 
"deirbhfine,""irafine"and  "indfine,"  of  which  the  young- 
est, "geilfine,"  has  five  members;  the  others  have  twelve, 


658  THE  PRIMITIVE  FAMILY 

four  each.  When  there  is  a  birth  in  the  "geilfine,"  its  oldest 
member  is  advanced  into  the  "deirbhfine,"  and  so  in  each 
class.  The  oldest  member  of  the  "indfine,"  however,  goes 
out  of  the  organization,  for  declassification  is  allowed. 
The  word  "geilfine"  has  the  same  meaning  as  the  Latin 
"manus,"  "familia";  "deirbhfine"  means  true  family; 
"irafine,"  subsequent  family;  and  "indfine"  means  the 
ultimate  family.  It  seems  that  the  principle  of  its  con- 
ception was  that  of  the  "patria  potestas,"  because  the 
"geilfine"  consists  of  the  father  and  four  children  or 
adopted  children  under  his  immediate  authority,  while 
the  other  groups  contain  emancipated  descendants,  whose 
dignity  decreased  with  the  distance  from  the  true  and 
typical  group.  The  Roman  and  this  kind  of  family  have 
a  common  base  in  paternal  authority,  but  there  are  many 
notable  differences ;  for  example,  the  institution  of  eman- 
cipation is  systematic  in  the  Irish  family,  while  in  the 
Roman  it  is  entirely  arbitrary.  There  is  a  similar  Eng- 
lish custom  in  which  the  youngest  son,  and  not  the 
eldest,  is  the  heir  and  stays  with  his  father,  never  being 
emancipated.  All  the  other  sons  leave  home  emancipa- 
ted, but  the  last  remains  and  is  dependent  on  his  father 
all  his  life.  The  domestic  community  of  the  southern 
Slav  is  a  union  of  natural  families  descended  from  a 
common  ancestor.  These  essentially  patriarchal  families 
are  governed  by  the  oldest  member;  the  relationship  is 
through  the  "grand  sang,"  that  is,  is  agnative,  and  not 
through  the  "petit  sang,"  or  cognative.  And  the  preva- 
lence of  agnation  is  the  surest  testimony  of  a  masculine 
form  of  descent.  From  one  aspect,  these  communities 
are  democratic,  because  each  member  has  the  right  to 
be  fed,  clothed,  and  lodged  by  the  corporation;  he  also 
has  a  voice  in  the  assembly  or  "skuptchina,"  held  under 
the  presidency  and  direction  of  the  older  members. 
From  another  aspect,  it  seems  despotic,  because  the  sum 


DEVELOPMENT  659 

of  everything  is  found  in  the  hands  of  the  head  of  the 
house  or  "domacin,"  who  may  be  the  eldest  son  of  the 
deceased  chief,  or  his  brother,  or  even  a  woman  of  excep- 
tional ability.  The  election  is  governed  in  part  by 
relationship,  in  part  by  the  necessities  of  life.  These 
elections  are  found  in  the  associated  Indian  family  and 
in  the  "sept."  The  capital  in  agriculture  or  enterprise  of 
the  community  is  inalienable  like  the  "res  mancipi"  of  the 
Romans,  which  formed  the  basis  of  the  agrarian  com- 
munity of  Latium.  The  "peculium,"  consisting  at  first 
in  some  heads  of  cattle  in  a  common  pasture,  works  as  the 
dissolving  force  of  the  corporation  using  its  influence 
the  same  as  among  the  Indians  and  the  Romans.  The 
daughters  had  a  right  to  marry  and  to  have  a  dowry. 
They  enjoyed  a  certain  liberty  of  choice  and  took  as  women 
to  the  house  which  they  entered  what  they  could  take  of 
the  herd  or  personal  property,  which  sometimes  went 
to  the  feminine  heirs  by  a  particular  rule  of  inheritance. 
Most  extensive  was  the  list  of  impediments  to  mar- 
riage, which  sprang  from  relationship  and  were  shown 
in  many  ways.  There  is  the  adoption  of  individuals  of 
the  families  and  a  curious  series  of  conventional  and 
spiritual  affinities.  In  the  primitive  world,  the  prejudice 
was  paramount  that  men  not  bound  together  by  blood 
relationship  were  either  enemies  or  slaves. 

§  440.  Development  of  the  Family.  From  all  that 
has  been  said  two  conceptions  can  be  gotten;  the  most 
immediate  is  that  of  the  derivation  of  the  patriarchal 
group  (that  Maine  still  believes  primitive)  as  the  sys- 
tem of  paternal  administration  of  the  property  in  the 
interest  of  the  family.  Spencer  says,  and  with  a 
great  deal  of  justice,  that  the  existence  of  such  a  sys- 
tem cannot  be  reconciled  with  the  fact  of  the  "jus 
vitse  ac  necis"  of  the  father  in  remote  ages.  It  is 
not  conceivable  that  a  savage,  with  his  selfishness  and 


660  THE  PRIMITIVE  FAMILY 

without  any  idea  of  justice  or  sentiment  of  responsi- 
bility, should  administer  the  goods  and  chattels  in  the 
interest  of  his  family.  And  if  in  the  patriarchal  group 
there  are  found  many  domestic  animals,  we  must  believe 
that  the  group  is  not  primitive,  because  the  domestica- 
tion must  have  taken  time.  The  other  conceptions 
includes  the  law  of  the  development  of  property,  the 
family  rights  over  property  and  towards  other  men  in 
primitive  times,  which  we  have  studied  in  other  places. 
At  the  beginning,  there  existed  a  communion  of  both 
women  and  chattels.  Relationship  was  a  connection 
between  an  individual  and  his  group,  which  had  all  the 
property  rights.  Then  the  communion  began  to  be 
restricted,  and  there  appeared  first  the  feminine  family 
and  then  the  masculine,  and  property  no  longer  belonged 
to  the  community  but  was  assigned  to  the  home.  There 
was  a  true  "dominium  a  domu."  As  time  went  on,  the 
individual  was  emancipated  from  the  patriarchal  power 
and  family  and  obtained  that  extended  liberty  which 
he  has,  for  example,  in  the  American  family.  In  that 
country,  the  boys  of  fifteen  or  sixteen  years  of  age  choose 
their  careers  with  the  greatest  independence  and  pro- 
ceed to  effect  their  choice  in  the  same  manner;  the  girls 
go  out  alone,  travel  alone,  and  freely  choose  their  hus- 
bands. The  individual  destroys  trusts,  family  estates, 
and  many  other  limitations  established  in  the  interest 
of  the  preservation  of  the  family;  and  proclaims  the 
absoluteness  of  his  property.  The  weakening  of  the 
family  bonds  go  hand  in  hand  with  absolute  property. 

§  441.  Evolution  Tends  to  Individualism.  Evolution 
is  progressive  individualization,  a  growing  intimacy  of 
parts.  Now  relationship  is  essentially  a  product  of 
evolution  because  it  began  by  being  generic  and  little 
by  little  became  specific  and  reached  distinction  in 
different  degrees  unknown  to  the  primitive  world;  it 


INDIVIDUALISM  661 

became  more  conscious  and  intimate,  passing  from  a 
state  of  homogeneity  and  incoherence  to  one  of  hetero- 
geneity and  coherence.  The  great  connotation  of  primi- 
tive relationship  was  entirely  superficial.  With  the 
appearance  of  the  family,  the  relationship  was  mani- 
fested in  a  smaller  sphere  but  became  richer  in  ramifica- 
tion and  degree.  It  became  a  real  union.  With  the 
flight  of  time,  it  acquired  greater  variety  and  intimacy. 
It  made  qualitative  progress,  for  promiscuous  life  is  from 
an  ethical  standpoint  inferior  to  the  matriarchal  family, 
and  the  latter  in  its  turn  to  the  patriarchal  family,  which 
is  founded  in  the  last  analysis  on  the  double  certainty 
of  the  father  and  mother.  Divers  systems  of  relation- 
ships succeeded  one  another  in  a  struggle  to  reach  the 
most  suitable.  And  the  prevalence  in  history,  now  of 
one,  now  of  another,  has  always  been  the  election  of  the 
relative  best.  Promiscuity  and  even  the  matriarchal 
family  are  not  very  favorable  for  the  preservation  and 
development  of  society,  since  they  lack  strong  domestic 
unity,  power  to  control,  and  respect  for  ancestry.  The 
children  are  entrusted  entirely  to  the  care  of  the  mother 
who  is  weak  and  not  in  a  condition  to  be  effectively  able 
to  protect  them.  When  the  father  reaches  old  age  he  is 
without  the  help  of  children  or  wife.  Polyandry  has 
the  advantage  of  stopping  an  excessive  increase  of  popu- 
lation, but  it  cannot  be  of  long  duration  because  it  always 
lessens  fecundity  and  lacks  cohesive  force,  while  lack  of 
subordination  between  the  fathers  renders  the  good  edu- 
cation of  the  children  impossible,  and  harms  society. 
Polygamy  (the  result  in  some  countries  of  the  honor 
derived  from  the  possession  of  many  wives  and  in  others 
from  the  advantage  of  having  many  slaves)  is  better  than 
polyandry.  In  polygamy,  the  bonds  between  the  father 
and  his  children  are  strong,  and  there  is  formed  a  line 
of  masculine  ancestors,  which  favors  the  development 


662  THE  PRIMITIVE  FAMILY 

of  ancestor-worship  and  political  stability  by  the  trans- 
mission of  power  in  the  same  family.  Polygamy  dimin- 
ishes infant  mortality  through  maternal  and  paternal 
care,  and  rapidly  fills  the  places  of  men  killed  in  war. 
Its  great  evil  lies  in  the  continual  discords  between  the 
women  and  children.  Monogamy  is  a  necessity  in  these 
regions,  where  the  life  demands  a  dispersion  of  the  tribe 
over  a  vast  area.  Monogamy  depends  upon  the  phases 
of  the  conception  of  property,  the  numerical  equality 
of  the  two  sexes,  and  the  experience  of  the  benefits 
which  it  brings.  In  truth,  it  determines  fully  the  rela- 
tions between  the  parents  and  children  and  relatives  in 
every  line.  It  produces  peace  and  cohesion.  It  per- 
fects the  support,  improves  the  education,  and  is  more 
fecund  in  most  cases  than  polygamy,  except  where  the 
men  are  much  fewer  than  the  women.  Spencer  shows 
the  connection  of  polygamy  with  the  military  communi- 
ties, and  of  monogamy  with  industrial  communities.  In 
the  first,  war  is  the  rule,  captures  frequent,  the  number  of 
women  excessive  through  death  in  the  tribal  wars,  and 
great  the  reputation  of  bravery  derived  from  the  posses- 
sion of  many  women  captured  from  the  enemy,  and  the 
despotic  character  of  the  warrior  is  prevalent;  in  the 
second,  the  principle  of  freedom  and  voluntary  coopera- 
tion predominates.  As  militarism  declines,  and  indus- 
trialism expands,  the  number  of  the  two  sexes  approaches 
equality,  and  monogamy  generally  becomes  the  rule.  The 
despotic  power  of  the  father  ceases,  and  the  life  of  the 
children  becomes  sacred  and  develops  towards  freedom. 

§  442.  The  Origin  of  Relationship  in  Love.  Relation- 
ship, whatever  its  form,  has  its  origin  in  love,  which 
is  also  subject  to  the  laws  of  evolution.  Love  has 
its  stages,  progress,  and  history.  It  began  by  includ- 
ing many  individuals  without  being  deep.  In  that 
phase  it  was  vague  and  external,  but  it  gained  strength 


RELATIONSHIP  IN  LOVE  663 

and  learned  the  use  of  its  wings.  As  it  gained  strength, 
and  was  restricted,  it  became  more  concrete  and  real 
by  specialization.  It  tended  to  individualization  and 
then  became  individual  and  could  not  brook  company. 
Love  has  grown  richer.  It  includes  new  points  of  view 
of  the  loved  object.  As  man  develops,  it  becomes  always 
more  various.  Monogamy  is  the  full  individuality  of 
love.  It  is  the  last  selection  of  human  love.  The  love, 
shown  in  polygamy  and  polyandry,  in  which  a  man  does 
not  give  himself  entirely  to  a  woman  and  a  woman  does 
not  abandon  herself  entirely  to  a  man,  has  not  attained 
full  self-realization.  Free  love  and  that  which  is  not 
foreign  to  a  fidelity  which  is  content  with  several  loved 
objects  are  primitive  facts.  Has  the  family  yet  reached 
its  final  limit  of  specification?  Some  think  this  possible, 
alleging  as  proof  the  antagonism  of  the  family  to  society, 
which  can  be  observed  among  animals  and  the  human 
race.  Experience,  they  say,  shows  that  where  the 
social  instinct  is  most  developed  and  alive,  the  family 
is  always  a  unity  less  strong  and  less  lasting,  and  that 
where  the  sentiment  of  the  family  includes  all  the  activ- 
ity of  its  components,  society  suffers  thereby  and  becomes 
weakened.  They  add  that  it  is  not  right  to  state  the  de- 
rivation of  society  on  the  family,  because  sexual  love  is 
of  itself  selfish  and  exclusive,  and  because  there  are  asso- 
ciations of  animals  which  are  in  no  sense  families,  not 
making  for  procreation.  Political  society  is  not  a  de- 
velopment of  the  family  because  one  is  bound  by  reason 
and  the  other  not,  because  one  is  based  on  reward  accord- 
ing to  merit  and  the  other  on  the  principle  of  assistance 
of  the  weak,  who  are  not  able  to  provide  for  their  needs. 
It  seems  to  us  that  the  growing  individualization  and 
intimacy  in  the  system  of  relationship  cannot  bring 
about  the  destruction  of  the  family.  These  factors 
only  mean  that  relationship,  little  by  little,  will  be 


664  THE  PRIMITIVE  FAMILY 

concentrated  within  natural  limits,  and  that  the  parts 
of  the  ethical  organism  will  have  more  freedom.  The 
restriction  of  relationship,  the  greater  intensity  of  domes- 
tic bonds,  and  the  emancipation  of  the  individual  from 
the  despotic  prevalence  of  the  head  of  the  family,  are 
not  signs  of  the  disappearance  of  the  family  nucleus. 
The  nucleus  will  remain,  though  more  limited  and 
intimate.  It  will  acquire  a  higher  character,  since  it 
will  be  founded  on  monogamic  marriage.  It  will  fully 
recognize  the  freedom  of  its  elements,  but  it  will  always 
remain  safe  and  sound.  If  such  freedom  becomes  exces- 
sive, it  will  have  to  be  tempered  and  harmonized  by  the 
principle  of  authority,  so  that  the  nucleus  may  be  saved. 
An  ethical  organism,  which  is  becoming  more  typical  and 
which  conforms  to  the  laws  of  reason,  is  not  destined 
to  disappear,  but  tends  to  persevere  in  its  existence,  to 
take  on  such  higher  coordinations  as  nature  and  reason 
dictate.  In  mankind,  society  and  family  are  in  no  wise 
antagonistic,  because  primitive  society  was  created 
through  relationship  broadly  construed,  that  is,  not  only 
on  natural  and  blood  relationship  but  on  civil  and  ficti- 
tious relationship.  The  members  of  the  first  civil  and 
political  communities  were  bound  together  by  ties  of 
blood  either  real  or  fanciful.  It  is  only  recently  that  the 
fact  of  the  common  habitation  or  life  became  the  base 
of  the  city  or  State.  The  religious  and  warlike  fraterni- 
ties of  remote  times  all  assumed  a  family  character. 
A  primitive  society  can  always  be  regarded  as  an  ampli- 
fied family.  Now  the  social  sentiment  among  men  is 
born  from  the  family  centre,  but  it  cannot  on  the  other 
hand  deny  that  the  latter,  with  the  progress  of  time,  can 
become  distinct  and  have  its  own  development  dependent 
upon  particular  causes. 

§  443.     Society  and  Family  are  Distinct.     Society  and 
family  have  diverse  functions  but  are  not  mutually  ex- 


SOCIETY  AND  FAMILY  665 

elusive;  they  are  rather  complementary.  Society  is  a 
community  of  civil  interest  and  becomes  a  political 
union ;  the  family  is  a  community  based  on  domestic 
affection  and  piety.  One  is  larger  and  higher  than  the 
other  and  includes  it  from  various  points  of  view,  either 
by  reinforcing  the  individual  activities  with  reciprocal 
exchange  of  services  or  by  organizing  the  ethical  whole 
in  its  single  elements.  The  family  without  civil  society 
or  the  State  is  an  incomplete  and  rudimentary  nucleus; 
the  State  cannot  be  imagined  without  the  family,  be- 
cause it  originated  in  the  latter.  The  idea  of  the  human 
community  develops  in  various  ways,  depending  upon 
whether  affections  approximate  interests  or  whether  in- 
terests are  dignified  into  reason.  Affection,  interest, 
and  reason  form  the  three  bases  of  the  human  union 
and  determine  its  form.  With  the  single  principle,  by 
which  the  family  is  governed,  society  would  be  badly 
organized  and  would  dissolve,  because  help  would  be 
extended  to  those  cases  in  which  it  would  be  unjust  and 
dangerous,  strengthening,  increasing,  and  aggravating 
through  love  the  evil  derived  from  individual  weak- 
nesses. With  the  single  principle  on  which  society  is 
governed,  that  is,  on  reward  according  to  merit,  there 
would  be  wanting  the  assiduous  care  for  that  portion 
of  the  human  race  which,  without  its  fault,  is  incapable 
of  providing  for  its  needs.  Society  would  not  fulfill  its 
duty  and  would  not  attain  its  object.  The  family  will 
live  as  long  as  the  individual  and  as  long  as  the  senti- 
ments and  conceptions  which  are  referable  to  care  or 
ownership.  Family  and  society  are  terms  which  work 
together  and  presuppose  one  another.  And  in  the  hu- 
man species  they  advance  side  by  side  because  the  per- 
fection of  the  family  exercises  an  influence  on  the  moral 
development  of  civil  society  and  the  State.  And  good 
civil  and  political  government  cannot  fail  to  bring  great 


666  THE  PRIMITIVE  FAMILY 

advantages  to  the  life  of  the  family.  In  other  words, 
the  greater  ethical  elevation  that  the  family  attains, 
the  more  will  civilization  and  politics  be  raised;  and 
as  civilization  and  the  State  approach  their  true 
end,  the  family  will  profit  thereby.  But  this  does  not 
prevent  the  two  objects  being  distinct  and  sometimes 
opposite.  In  fact,  sometimes  society  absorbs  the  family 
and  sometimes  the  family  absorbs  society. 


FAMILY  RELATIONSHIPS  667 


CHAPTER  XVIII 

THE  CONJUGAL  RELATION 

LOVE  AS  THE  FOUNDATION  OF  MATRIMONY.  —  THE  IDEA  OF 
MATRIMONY.  —CONDITIONS.  —  CIVIL  MATRIMONY.  —  THE  PRE- 
CEDENCE OF  THE  CIVIL  CEREMONY.  —  RELATION  BETWEEN 
THE  PARTIES.  — MARITAL  AUTHORITY.  — REBEL'S  BOOK.  AND 
THE  IDEA  OF  SPENCER.— THE  SYSTEM  BY  WHICH  PROPERTY 
IS  REGULATED  IN  MATRIMONY. 

§  444.  Family  is  Divided  into  the  Paternal  and  Conju- 
gal Relations.  The  family  is  composed  of  two  relations 
intimately  bound  together,  one  of  which  germinates  in 
the  other.  These  relations  are  the  conjugal  and  the 
parental.  The  conjugal  relation  is  the  object  of  matri- 
monial law,  the  other  of  domestic  law.  According  to 
Aristotle,  every  society  and  ethical  organization  arises 
and  is  preserved  by  a  bond,  by  common  affection,  and 
by  the  friendship  of  the  two  parties.  Love,  the  foun- 
dation of  matrimony,  is  a  friendship  suggested  by 
nature  and  accompanied  by  cupidity.  It  is  taught  us 
by  considering  someone  as  a  cause  of  one's  own  happi- 
ness, by  feeling  the  desire  of  living  and  reliving  in  others. 
This  same  conception  is  shadowed  in  the  fable  of  the 
division  into  the  two  parts  of  primitive  and  hermaphro- 
dite man,  a  kind  of  robust  and  strong  composite  of  both 
sexes,  and  of  the  fancied  meeting  of  two  opposites, 
wearied  by  the  fear  of  the  gods,  who  of  their  own  will 
come  together  and  make  one,  as  you  can  read  in  the 
"Symposium."  Through  generation,  love  can  be  said  to 
be  the  attempt  of  the  mortal  to  be  immortal,  as  Socrates 


668  THE  CONJUGAL  RELATION 

says  in  the  same  Dialogue.  Love,  the  cause  of  matri- 
mony, is  not  the  winged  child  of  the  myth,  otherwise 
the  conjugal  union  would  be  fleeting;  neither  is  it  the 
impulse  to  the  production  of  the  beautiful  in  a  beautiful 
mind  and  body,  as  Plato  believed,  because  this  would 
deprive  it  of  the  natural  tendency  to  generation,  and 
furthermore,  in  this  case,  it  could  exist  between  individ- 
uals of  the  same  sex.  Love  is  rather  the  inclination  of 
the  senses,  an  affection,  a  desire  untrammelled  by 
reason.  This  fleeting  appetite  is  raised  to  an  enduring 
sentiment,  to  a  constant  will  becoming  a  duty,  and 
existing  in  fidelity  and  mutual  sacrifice.  Here,  as  else- 
where, it  is  the  mind  which  makes  the  elements  of  the 
senses  necessary  and  keeps  them  true.  Plato  did  not 
thoroughly  understand  the  nature  of  love  on  another 
score,  for  he  allows  polygamy,  while  true  and  living 
love  is  a  feeling  which  will  not  brook  it.  Aristotle, 
on  the  other  hand,  had  a  true  conception  of  love, 
calling  matrimony  the  union  exclusive,  lasting,  and 
divine,  which  results  from  the  interpenetration  of  the 
two  opposite  characters  of  man  and  woman.  Such  a 
conception  was  common  to  the  minds  of  the  Roman 
jurisconsults,  who  defined  matrimony  as  "conjunctio 
maris  et  fceminae,  consortium  omnis  vitae,  divini  et 
humani  juris  communicatio,"  and  as  "conjunctio  viri 
et  mulieris  individuam  vitse  consuetutinen  continens." 
Hegel  is  right  when  he  says  that  Kant  presents  matri- 
mony in  its  shamelessness,  in  his  definition  of  it  as  a 
bond  of  the  persons  of  different  sex  for  the  interchange 
and  constant  possession  of  mere  sexual  pleasures. 

§  445.  Marriage  is  a  Union.  Rosmini  has  written 
strongly  on  the  subject.  Inner  man,  he  says,  is  one 
and  identical ;  thus  there  arises  in  him  a  continual 
tendency  to  reduce  plurality  to  unity.  Hence,  as  plu- 
rality reduced  to  unity  in  an  object  pleases  the  mind 


UNION  MUST  BE  SPIRITUAL  669 

which  contemplates  it,  in  whose  eyes  it  is  beautiful, 
so  plurality  reduced  to  unity  in  sentiment  is  pleasant 
to  the  sentiments  and  is  called  eudemonistic  well-being 
Beauty  in  plurality  becomes  unity  in  the  ideal  world. 
Rosmini's  idea  of  beauty,  which  has  its  source  in  Leib- 
nitz's doctrine,  may  not  satisfy  everybody,  because  it  is 
formal.  Yet  even  in  consciousness  and  knowledge  there 
is  the  same  reduction  of  the  various  to  identity  that  is 
observable  in  beauty.  The  specific  difference  between 
truth  and  beauty  lies  in  the  aesthetic  sense,  in  the  imagi- 
nation which  clothes  conceptions  in  more  suitable  sen- 
sible forms.  The  unification,  our  philosopher  goes  on, 
which  makes  a  man  and  his  possessions  one,  produces 
the  fact  of  property;  the  unification  of  individuals  pro- 
duces the  fact  of  society,  and  the  conjugal  relation  above 
all  others.  Matrimony,  it  must  be  remembered,  is  the 
union  not  of  things,  but  of  human  beings;  it  is  the  full 
and  perfect  na'tural  union  of  two  individuals  of  different 
sex.  From  this  it  follows  that  the  two  sentiments  of  the 
husband  and  wife  should  on  every  score  be  so  responsive 
as  to  find  the  complement  of  each  in  the  other.  The  spir- 
itual element  should  respond  to  the  spiritual,  the  physi- 
cal to  the  physical,  so  that  the  man  and  the  woman  are 
bound  together  by  a  three-strand  rope  of  soul,  mind, 
and  body.  In  the  sentence,  "erunt  tuo  in  carne  una," 
the  first  phrase,  "erunt  tuo,"  expresses  this  individuality 
and  the  impossibility  of  the  fusion  of  two  personalities ; 
the  other,  "in  carne  una,"  expresses  the  unity  of  life. 
And  now  it  must  be  remembered  that  the  union  of  the 
sexes  is  a  vital,  not  a  mere  phyiscal  union,  though  in  the 
physical  act  the  two  fundamental  sentiments  of  the  indi- 
viduals seem  to  become  one. 

§  446.  The  Union  must  be  Spiritual,  Mental,  and  Phy- 
sical. There  is  a  true  union  of  man  and  woman  only 
when  the  spiritual  and  mental  bond  precedes  the  physi- 


670  THE  CONJUGAL  RELATION 

cal,  which  is  only  the  complement  or  completion  of  the 
former.  When  one  human  being  joins  himself  to  another, 
he  should  join  fully  with  all  that  makes  the  man.  For 
every  union,  to  be  fixed  and  stable,  should  begin  at  the 
apex  of  human  nature  and  thereafter  descend  to  the 
other  elements,  if  those  who  unite  do  not  want  to  sub- 
ject reason  to  desire.  From  this  can  be  seen  the  reason 
for  the  illegality  of  concubinage ;  the  law  cannot  recog- 
nize it,  because  it  lacks  an  ethical  basis.  An  immoral 
marriage  law  is  based  on  the  right  of  might ;  it  is  based 
on  the  strength  of  man  and  is  the  legal  dishonor  of  woman. 
From  what  has  been  said,  it  is  clear  that  matrimony  has 
a  primary  object — full  personal  union, — and  a  secondary 
object — generation.  The  personal  union  is  the  primary 
object  because  there  can  be  no  matrimony  without  it ;  and 
generation  is  only  secondary,  because  the  matrimony 
exists  despite  the  sterility  of  the  union.  Generation  was 
the  chief  object  in  the  days  of  the  Old  Testament,  when 
sterile  unions  were  dissolved;  in  the  time  of  the  New 
Testament  the  personal  union  has  become  the  main  and 
primary  purpose. 

§  447.  Conditions  and  Impediments  to  Marriage. 
From  these  attributes  of  matrimony  its  conditions  and 
impediments  are  deducible.  The  first  condition  clearly 
is  an  age  necessary  for  the  "conjunctio  maris  et  fceminse" 
and  for  the  "consortium  omnis  vitae."  There  must  be 
physical  capacity  and  moral  maturity  for  a  marriage; 
the  law  should  do  all  in  its  power  to  hinder  marriages  of 
precocious  appetites  or  of  folly.  The  second  condition  is 
bound  up  with  the  first;  it  is  the  necessity  of  parental 
consent  until  the  children  have  reached  an  age  in  which 
a  full  discernment  of  the  facts  and  relations  of  life  can 
be  presumed.  But  to  avoid  an  arbitrary  prohibition  on 
the  part  of  the  parents,  an  appeal  to  the  courts  is  allowed. 
A  law  requiring  the  consent  of  the  State  for  the  mar- 


MARRIAGE  BETWEEN  RELATIVES       671 

riage  of  persons  of  certain  classes,  for  example,  of  mem- 
bers of  the  wage-earning  or  proletarian  classes,  is  a  viola- 
tion of  the  most  sacred  individual  rights,  that  is,  the 
right  to  find  one's  own  fulfillment  in  others  with 
absolute  freedom  of  choice.  Legislation  requiring 
such  consent  in  order  to  reduce  the  excess  of  popula- 
tion, following  the  old  pagan  theory  of  political 
thought,  markedly  increases  the  number  of  illegiti- 
mate births.  The  objection  of  the  infringement  of 
personal  liberty  cannot  be  applied  to  the  requirement 
of  a  certificate  for  the  marriage  of  those  engaged  in 
military  pursuits  for  discipline  and  the  general  good  of 
the  service. 

§  448.  Marriage  between  Relatives.  The  third  con- 
dition is  the  degree  of  consanguinity.  The  judgment 
of  mankind  is  opposed,  says  Rosmini,  to  marriage 
between  lineals,  because  in  the  progress  which  nature 
has  assigned  to  sexual  love,  the  child  is  the  result  of 
the  activity  which  has  ceased  to  exist,  having  devel- 
oped and  been  satisfied.  This  progress  shows  that  it 
would  be  unnatural  for  sexual  love  to  begin  when  nature 
has  decreed  it  to  end,  that  is,  in  the  descendant.  As  to 
collaterals,  if  human  instinct  was  considered  in  its  per- 
fection, it  is  evident  that  it  would  force  men  to  marry 
where  there  was  no  consanguinity,  or  else  where  the 
common  stock  was  so  distant  as  to  have  been  lost  to 
memory.  The  reason  of  this  is  that  where  the  common 
ancestor  is  known  and  remembered,  he  seems  to  be  re- 
produced in  the  children  or  with  this  paternal  image  in 
the  mind,  it  seems  as  if  the  marriage  was  contracted  with 
him  in  marrying  a  brother,  in  whom,  in  every  man's 
mind,  is  the  father  made  young  once  more.  If  the  nature 
of  matrimony  is  considered,  which  unites  the  individuals, 
it  can  be  seen  that  the  cognates  of  one  cousin  are  the 
agnates  of  the  other;  hence,  the  same  rule  for  them. 


672  THE  CONJUGAL  RELATION 

§  449.  Adoption  and  Marriage.  In  adoption,  the 
adoptor  has  the  feelings  of  a  parent,  and  assumes  his 
duties;  the  adopted  should  consider  himself  as  a  son. 
What  has  already  been  said  concerning  the  impediments 
of  lineal  relatives  should  be  applied  to  this  knot  of  legal 
relationship.  In  general,  the  intrinsic  motives  for  the 
prohibition  of  intermarriage,  besides  those  already  given 
(that  marriage  is  ideally  the  union  of  diverse,  not 
similar  elements),  can  be  roughly  reduced  to  two: 
to  the  protection  of  family  morals,  and  to  the  dangers 
arising  from  the  marriage  of  relatives,  whose  descen- 
dants are  often  weak,  sickly,  with  a  disposition  towards 
insanity,  and  frequently  deaf  and  dumb.  These  unions 
result  in  the  inheritance  of  such  diseases,  as  long  and 
constant  experience  shows.  The  prohibition  is  not  ab- 
solute, allowing  for  exception  where  the  relationship  is 
slight,  or  where  there  are  potent  reasons  of  domestic 
necessity.  So  among  collaterals,  while  the  marriage  of 
brothers  and  sisters  is  always  forbidden,  yet  sometimes 
it  is  permitted  between  relatives  of  the  same  degree,  — 
between  uncle  and  niece,  or  nephew  and  aunt.  It  is 
necessary,  in  such  cases,  to  take  account  of  all  positive 
and  relative  factors  in  the  family. 

§  450.  The  Impediment  of  Attempted  Murder.  The 
fourth  condition  refers  to  an  attempt  upon  the  life  of 
the  consort  of  the  person,  whom  the  criminal  desires  to 
marry.  Such  an  attempt  is  an  impediment,  since 
matrimony  cannot  be  the  reward  for  a  crime.  The 
fifth  is  the  disregard  to  solemn  formalities,  prescribed 
under  penalty  of  nullity,  which  serve  to  give  certain- 
ty and  publicity  to  matrimony. 

§  451.  Annulment  of  Marriage.  It  is  easy  to  under- 
stand that  impediments  are  caused  by  the  failure  to 
observe  the  above  conditions.  These  impediments 
annul  the  marriage,  making  it  void  or  voidable.  The 


BETROTHALS  673 

impediments  which  produce  absolute  nullity,  that 
is,  those  which  can  be  invoked  by  anyone  who 
has  an  interest,  are,  for  example,  that  the  contract- 
ing parties  are  not  of  age,  or  that  one  of  them  has 
entered  into  a  prior  marriage.  The  impediments  which 
produce  relative  nullity,  that  is,  those  which  can  be 
invoked  by  certain  persons,  are  lack  of  consent  or  im- 
potency.  A  person  without  the  power  of  sexual  inter- 
course cannot  enter  matrimony,  because  a  specific 
object  of  marriage  is  lacking.  This  impotency  must  be 
manifest,  that  is,  such  as  can  be  known  and  recognized 
by  a  doctor;  it  must  be  incurable  and  not  transitory, 
anterior  to  the  wedding,  and  then  existing.  Some  im- 
pediments are  temporary,  and  have  nothing  to  do  with 
the  essential  requisites  of  marriage.  They  prevent  the 
marriage  being  fully  legitimate,  but  allow  it  to  be 
sustained.  Of  this  kind  is  the  prohibition  against  a 
widow's  marriage  within  ten  months  of  the  death  of 
her  husband.  The  theory  of  these  impediments  is  the 
same  as  that  of  the  conditions  required  for  a  marriage, 
and  have  to  do  with  the  philosophy  of  the  law  as  well 
as  with  positive  law. 

§  452.  Betrothals.  The  custom  of  a  betrothal  has, 
Trendelenberg  says,  a  good  basis;  because  the  engage- 
ment serves  not  only  as  a  preparation  for  the  marriage, 
but  also  tends  to  implant  in  the  couple  (who  begin 
forthwith  a  more  intimate  life)  true  will  in  place  of 
wavering  faith,  and  also  because  in  this  way  it  is 
possible  to  test  their  desire  to  marry,  which  should  be 
neither  a  romantic  sentiment  nor  an  unfeeling  calcu- 
lation. And  yet  the  betrothal,  though  well  sanctioned 
by  use  and  by  the  weight  of  tradition,  cannot,  in  case  of 
breach,  have  any  other  legal  result  than  indemnification 
for  the  injury  caused.  If  it  had  greater  legal  force  and 
could  compel  the  marriage,  it  would  defeat  its  own  pur- 


674  THE  CONJUGAL  RELATION 

pose,  which  is  to  put  a  certain  time  between  the  date 
of  the  promise  and  the  marriage  in  order  to  test  the 
character  and  vocation  of  the  couple  for  a  more  intimate 
life. 

§  453.  Marriage  is  Ethical,  Religious,  and  Juridical. 
Marriage  is  an  ethical,  religious,  and  legal  institution. 
Marriage  laws  have  been  the  subject  of  a  long  and  bitter 
struggle  between  the  Church  and  State.  The  former 
considered  the  sacrament  as  the  essence  of  a  conjugal 
union,  and  therefore  claimed  the  right  to  regulate  it 
with  its  canons  and  in  its  courts.  The  Council  of 
Trent  made  the  triune  proclamation  of  marriage  before 
the  Church;  it  imposed  upon  the  couple  the  duty 
of  declaring  their  intentions  before  a  parish  priest,  and 
of  receiving  his  benediction.  Following  St.  Thomas,  it 
was  admitted  that  the  rite  of  the  sacrament  was  to  be 
given  upon  the  desire  of  the  couple,  while  the  solemnity 
comes  from  the  sacerdotal  benediction.  Civil  govern- 
ments began  to  take  up  the  right  to  enact  marriage 
laws  at  the  time  of  the  Reformation.  Civil  marriage 
first  appeared  in  England  under  the  laws  of  Cromwell, 
who  gave  justices  of  the  peace  authority  to  celebrate 
marriages,  and  jurisdiction  over  them, — a  law  defended 
by  Milton,  but  doomed  to  fall  with  the  other  republi- 
can institutions.  In  the  Catholic  countries  canon  law 
controlled,  but  was  enforced  by  the  State.  Some  royal 
orders  in  France  and  in  the  Kingdom  of  Naples  began 
the  vindication  of  the  State's  jurisdiction.  In  France 
civil  marriage  was  permitted  to  the  Protestants  by  the 
laws  of  Louis  XVI.  The  Revolution,  by  means  of 
the  Constitution  of  1791,  and  the  Legislative  Assembly 
of  1792,  treated  marriage  as  any  other  contract,  and 
prescribed  a  civil  form,  obligatory  upon  all  citizens. 
To  the  Code  belongs  the  credit  of  having  restored 
to  marriage  its  high  ethical  character,  taken  away  by 


STATE  CONTROL  OF  MARRIAGE         675 

the  laws  of  1791  and  1792.  The  Code  allowed  imped- 
iments upon  the  basis  of  its  ethical  character,  reaffirmed 
the  jurisdiction  of  the  civil  courts  and  the  right  of 
the  State  to  pass  marriage  laws ;  it  prohibited  the  cele- 
bration of  the  religious  ceremony  before  the  civil.  The 
French  Code  was  introduced  into  Italy,  but,  upon  the 
Restoration,  the  ancient  state  of  the  law  was  brought 
back  in  nearly  all  its  forms.  The  Italian  Code  pre- 
scribes for  the  civil  marriage,  but  allows  it  to  be 
celebrated  before  or  after  the  religious  ceremony. 
§  454.  State  Control  of  Marriage.  The  State  is  not 
an  atheistic  but  a  lay  power.  It  has  no  authority  in 
religious  matters,  and  therefore  cannot  look  upon  mar- 
riage except  as  a  civil  contract,  sui  generis,  recognizing, 
however,  that  the  complete  union  is  a  divine  bond. 
The  incompetence  of  the  State  is  not  due  to  ignor- 
ance of  religion  or  the  Church,  nor  indifference  to  those 
high  human  interests  so  vital  and  powerful.  In  the  State 
there  is  contained  and  developed  the  same  human  nature 
on  which  religion  is  based ;  but  the  State  considers  human 
nature  only  from  the  juristic  point  of  view.  It  should 
prevent  the  clergy  inspiring  the  multitude  to  rebellion  or 
fanaticism,  but  at  the  same  time,  it  should  not  encourage 
the  development  of  atheism.  The  State,  therefore,  can- 
not discredit  the  religious  ceremony,  but  can  add  the 
legal  duty  of  a  civil  ceremony  as  an  essential  necessity. 
To  look  upon  marriage  as  a  civil  contract  does  not  mean 
to  lower  it  to  the  condition  of  a  bargain  and  sale  partner- 
ship or  ordinary  contract,  in  which  there  is  great  useful- 
ness, or  an  exchange  of  value,  but  it  connotes  the  recog- 
nition of  the  perfect  union  of  two  persons  of  different  sex. 
Marriage,  looked  upon  as  a  civil  contract,  has  a  distinct 
and  particular  nature  in  its  meaning  and  its  end,  and  is 
essentially  different  from  all  other  contracts.  The  State, 
in  the  case  of  marriages,  not  only  exercises  its  functions 


676  THE  CONJUGAL  RELATION 

of  guaranty,  but  intervenes  as  an  ethical  power,  an  organ 
of  natural  law,  and  realizes  the  conception  of  matrimony, 
determines  its  conditions,  taking  account  of  the  various 
historical  needs  of  the  people.  Consequently  it  cannot 
as  Trendelenburg  would  wish,  give  over  without  abdica- 
tion to  the  Church  the  contract  of  marriages,  nor  can 
the  institution  of  civil  marriage  be  considered  as  a  return 
of  the  days  of  the  struggle  with  the  Church,  as  the  same 
philosopher  adds.  Civil  marriage  is  not  a  backward  step 
of  any  kind,  but  is  the  marriage  of  natural  law,  in  which 
the  State  is  an  effectual  factor  in  social  relations,  without 
passing  the  confine  of  its  authority.  For  the  same  reason 
we  must  not  be  misled  by  Rosmini,  who  teaches  that 
the  laws  should  follow  the  religious  forms  allowed  by  the 
State,  as  in  the  case  of  freedom  of  conscience.  If  the  State 
did  this,  it  would  not  have  its  own  forms  of  marriage, 
but  would  be  forced  to  regulate  it  in  many  different 
and  various  ways.  For  the  same  reason,  permissive 
civil  marriage  cannot  be  recognized  where  an  election 
is  given  between  the  religious  and  civil  ceremonies; 
and  if  the  former  is  chosen,  the  Church  celebra- 
tion must  be  registered  in  the  books  provided  by  the 
State  for  the  purpose.  Upon  the  same  theory  is  based 
the  legality  of  punishing  the  contracting  parties  and  the 
priest  who  performs  the  religious  ceremony  before  the  civil . 
In  such  an  act  are  found  the  common  elements  of  fraud 
and  injury.  Clearly,  the  religious  marriage,  examined  by 
itself,  is  not  a  fraudulent  act,  but  it  becomes  such  when  it 
entails  the  breaking  the  laws  of  the  State,  the  denial  of 
the  conjugal  relation  and  of  the  rights  of  children,  both 
undermining  the  moral  sense  of  the  community  and  in- 
flicting the  greatest  harm  upon  the  two  families.  Reli- 
gious marriage  is  the  effectuation  of  true  matrimony  in 
one  of  its  branches,  and  is  not  a  kind  of  concubinage  in 
which  the  sexual  passions  are  appeased,  but  in  which  no 


STATE  CONTROL  OF  MARRIAGE         677 

sacred  or  profane  bonds  are  entered,  and  no  duty  towards 
the  public  taken.  Gabbi,  in  "I  Due  Matrimonii,"  has 
said  that  those  who  are  married  by  the  Church  desire 
a  form  of  moral  union  without  conjugal  or  domestic  bur- 
dens, letting  the  future  look  out  for  itself ;  many  therefore 
disregard  the  civil  marriage,  and  a  moral  degeneration  of 
society  results.  The  institution  of  marriage  is  here  broken 
by  both  families,  and  is  broken  also  by  the  priest  who 
blesses  such  a  union  contrary  to  the  law  of  the  State. 
The  parties  being  the  chief  actors  deserve  the  greater 
punishment.  There  is  here  no  reason  for  appealing  to 
the  theory  of  the  separation  of  Church  and  State,  because 
the  latter's  rights  or  prerogatives  are  injured  by  such 
an  act.  The  clericals  can  be  interested  in  opposing  civil 
marriages,  but  not  in  opposing  the  prohibition  of  cele- 
brating it  before  the  religious  ceremony.  Neither  can 
the  principle  of  civil  liberty  be  invoked,  for  it  has  not 
been  infringed,  since  the  religious  marriage  has  in  no  wise 
been  made  into  concubinage.  The  prohibition  in  ques- 
tion eliminates  an  easy  method  of  masculine  egotism  and 
power,  and  conforms  to  the  prudence  of  those  who  want 
both  ceremonies,  because  one  of  the  parties  might  die 
after  the  religious,  and  before  the  civil  marriage.  In 
this  case,  the  other  would  be  left  in  an  equivocal,  unde- 
fined and  injurious  position.  But  marriages  in  extremis 
seem  a  reasonable  exception  to  the  rule,  for  they  tran- 
quilize  the  conscience  of  a  dying  man  and  for  this  reason 
should  entail  no  punishment  either  for  the  parties  or 
the  priest.  The  parties,  if  the  one  who  was  dying  recovers, 
must  be  penalized  unless  they  have  a  civil  ceremony  per- 
formed within  a  certain  time.  The  priest,  of  course,  be- 
ing free  from  blame,  should  not  be  punished  even  if  the 
parties  refuse  to  have  the  second  marriage.  The  State, 
besides  enacting  this  prohibition,  should  take  part  in 
stopping  the  abolition  of  the  rights  of  widowhood, 


678  THE  CONJUGAL  RELATION 

which  are  brought  about  either  by  action  of  law  or  by  will. 
The  conditio  viduitatis  presupposes  that  the  deceased 
wished  his  survivor  to  keep  inviolate  the  conjugal  faith. 
With  the  entrance  into  a  religious  marriage  by  the  sur- 
vivor, such  faith  is  destroyed.  The  law  cannot  act  in  the 
case  of  an  illegal  ceremony,  for  the  deceased  has  trusted  to 
the  honor  of  the  survivor,  and  we  must  adopt  a  phrase 
of  the  law  of  contracts,  that  the  law  cannot  enter  the 
sphere  of  personal  judgments  and  valuations. 

§  455.  The  Equality  of  the  Sexes.  There  are  many 
different  relations  between  husband  and  wife,  a  great 
number  of  which  lie  within  the  sphere  of  custom,  and 
are  not  subject  to  legal  enforcement.  The  law  recog- 
nizes only  those  which  it  can  enforce,  such  obliga- 
tions, that  is,  as  those  of  cohabitation,  faithfulness, 
and  support.  Certainly  a  family  must  have  a  head 
to  avoid  inaction  and  anarchy,  and  the  head  should 
be  appointed  by  law,  in  accordance  with  the  dictates  of 
nature.  It  is  of  little  profit  in  discussing  if  the  parents 
or  children  should  be  the  head,  entrusted,  as  it  is,  with 
the  power  of  controlling  the  domestic  fate.  But  should 
the  law  give  the  decision  to  the  husband  and  father?  Is 
it  reasonable  that  the  husband  must  join  the  wife  in 
many  of  her  important  acts,  such  as  the  alienation  of 
realty,  in  making  a  loan,  or  gift?  Plato  believed  in  the 
identical  nature  of  man  and  woman  and  a  congenital 
diversity  of  functions,  but  this  idea  had  not  been  fully 
recognized  by  all  the  presuppositions  of  political 
thought.  Aristotle,  in  his  turn,  declared  with  great 
precision  the  natural  difference  of  the  sexes,  and  looked 
upon  it  as  one  with  the  unity  of  divine  determination. 
He  pointed  out  that  in  the  conjugal  cooperative  society 
the  man  is  stronger  and  better  suited  for  the  acquisi- 
tion and  defense  of  property  than  his  wife,  while  she 
is  calm,  cautious,  domestic,  prudent,  imploring  help  and 


EQUALITY  OF  THE  SEXES  679 

aid  against  injustice,  particularly  that  arising  from  exter- 
nal relations.  If  Plato  accentuated  the  identity  of  the 
sexes  and  did  not  see  the  difference  between  them,  Aris- 
totle erred  on  the  other  side.  Xenophon  and  Plutarch, 
however,  kept  the  balance  between  these  facts,  which  they 
developed  in  a  practical  manner  in  lectures  and  argu- 
ments. Xenophon  said  that  God  destined  man  and 
woman  to  freedom  in  the  social  community,  adding, 
however,  that  woman  tends  to  domesticity,  and  man 
to  the  affairs  of  the  world.  Plutarch,  while  recognizing 
that  in  the  initiative,  in  poetry,  and  morals,  women  have 
equalled  men  in  merit,  did  not  wish  to  praise  women 
for  any  similarity  to  men,  or  men  for  any  similarity 
to  women.  Among  the  Romans,  the  identity  of  the 
natures  of  the  sexes  and  their  equality  of  rights  were 
the  base  of  the  Roman  theories  and  institutions  in 
historical  times.  Cicero  was  opposed  to  the  Voconian 
Law  that  excluded  women  from  the  greater  part  of  the 
inheritance.  Seneca  believed  that  the  duty  of  fidelity 
was  as  binding  upon  a  man  as  a  woman,  on  the  grounds 
of  the  equality  of  the  sexes.  Yet  the  Romans  were 
opposed  to  a  woman's  mixing  in  politics,  and  wanted  her 
to  be  the  housewife.  Christianity  proclaimed  the  prin- 
ciple of  the  unity  in  nature  of  man  and  woman,  in 
teaching  that  God  made  woman  out  of  Adam,  and  gave 
them  the  same  name,  though  at  the  same  time  it  admitted 
the  control  of  the  man,  as  is  shown  by  the  above  fact 
and  by  the  sentence:  "Vir  caput  est  uxoris,  mulier 
autum  gloria  viri  est."  St.  Augustine,  like  Cicero,  called 
the  Voconian  Law  unjust,  and  considered  adultery  as 
grave  a  fault  in  the  husband  as  in  the  wife.  St.  Jerome 
writes:  "Apud  nos  quod  non  licit  foeminis,  aeque  non 
licit  viris,  et  eadum  servitus  pari  conditione  censatur." 
§  456.  Comparison  of  the  Sexes.  It  has  been  said 
with  truth,  that  as  to  their  body,  man  is  superior  in 


680  THE  CONJUGAL  RELATION 

that  he  has  more  power,  and  woman  in  that  she  is  more 
delicately  made.  The  heavier  bones  and  muscles,  the 
great  lung  capacity,  and  the  big  brain  will  always  make 
man  the  conqueror  in  the  struggles  of  life.  Woman 
is  marked  by  a  greater  excitability  of  the  nervous  sys- 
tem. Mentally,  we  must  agree  with  Beneke  that  in 
man  thought  has  a  greater  and  more  intimate  power, 
auto-consciousness  is  more  developed,  reflection  more 
sustained,  firmness,  coherence,  and  seriousness  are  better 
marked,  and  the  mental  functions  more  complex  and 
difficult.  In  woman,  on  the  contrary,  sentiment  pre- 
dominates over  thought,  involving  memory  and  imagin- 
ation; in  her,  too,  ideas  of  the  outside  world,  and  of  life 
among  her  fellows  predominate ;  she  is  less  self-analyti- 
cal, and  has  less  abstract  virtue.  Her  intuitions  about 
things  of  moment  are  finer,  but  because  of  sudden  re- 
actions lead  to  unhappiness  and  distress.  In  her  you 
find  greater  adaptability,  delicacy,  timidity,  docility,  and 
sacrifice.  In  woman,  too,  are  found  greater  sudden 
bursts  of  passion ;  and  love  is  longer  and  more  calculat- 
ing. Man's  mind  easily  masters  general  ideas,  while 
woman's  does  so  with  the  greatest  difficulty,  always  by 
way  of  her  heart;  man  enjoys  creative  faculties  and 
reaches  the  heights  of  genius.  Woman  feels  more  than 
she  analyzes  truth,  and  individualizes  everything.  In 
history  we  find  that  she  pays  more  attention  to  single 
characters  than  to  general  causes.  In  deeds  of  benevo- 
lence she  tends  more  to  charity,  which  alleviates  particu- 
lar cases  of  suffering,  than  to  philanthropy,  which  takes 
forethought  against  the  suffering  of  mankind.  In  busi- 
ness a  man  risks  more  than  a  woman  and  gains  more, 
while  a  woman  saves  more  and  is  a  better  manager. 

§  457.  Inequality  of  the  Sexes.  Stuart  Mill,  the 
modern  writer  most  renowned  in  sustaining  the  above 
theory  of  the  emancipation  of  woman,  disagreeing  with 


INEQUALITY  OF  THE  SEXES  681 

Comte  and  Spencer,  conceives  the  harmony  of  the 
sexes  as  a  result  of  the  abstract  identity  of  nature 
and  mere  organic  opposition.  He  thinks  that  the 
original  and  important  difference  of  organism  can 
be  transformed,  as  experience  shows  in  psychological 
determination;  that  the  difference  between  man  and 
woman  can  be  reduced  to  organic  contrast.  If  there 
was  but  a  single  tone,  true  harmony  would  be  lacking, 
because  the  effectiveness  increases  with  the  greater 
variety  of  elements.  Stuart  Mill  believes  that  the  cause 
of  the  psychic  differences  between  the  sexes  is  education. 
But  education  in  this  case  would  not  be  natural  develop- 
ment aided  by  art ;  it  would  be  rather  a  foreign  importa- 
tion contrary  to  nature,  a  contradictory  mark  in  the 
feminine  mind  presupposing  a  clean  slate  at  the  start, 
a  mark  that  has  been  made  throughout  centuries.  The 
power  of  education  should  not  be  exaggerated  when  it 
extends  beyond  the  confines  of  nature.  Huxley  says 
on  this  subject  that  the  ancient  Salic  law  of  nature  will 
never  be  abrogated  nor  will  there  be  changes  of  dynasty. 
And  although  he  is  the  closest  follower  of  Darwin,  he 
adds  that  he  would  not  dare  to  state  seriously  that  a 
different  system  of  education  would  ever  be  successful 
in  removing  the  physical  obstacles  by  which  woman  is 
always  made  weaker  than  man  in  the  struggles  of  life. 
Spencer  further  affirms  that  in  the  progress  of  civiliza- 
tion the  masculine  and  feminine  characters  modify  in 
adaptation  to  higher  social  demands,  and  in  the  woman 
particularly  certain  mental  and  moral  qualities,  taught 
by  necessity  for  protection  against  the  greater  strength  of 
man  in  barbarous  times,  disappear;  but  the  habits  and 
original  activities  of  the  two  sexes  do  not  disappear. 
Furthermore,  Mill  is  wrong  in  likening  the  form  of  the 
family  community  to  that  of  a  trading  company,  in  which 
the  control  is  entrusted  to  the  more  expert  and  is  not 


682  THE  CONJUGAL  RELATION 

determined  by  law ;  because  the  family  is  a  society  formed 
of  unequal  persons  and  has  an  ethical  existence  higher 
than  that  of  mere  association  for  exchange,  including  the 
relations  between  husband  and  wife  and  between  chil- 
dren and  parents  —  relations  which  have  to  do  with  the 
most  intimate  fact  of  human  existence. 

§  458.  The  Husband  Must  Have  the  Authority. 
From  this  analysis  it  can  be  seen  that  the  institution 
of  marital  authority  is  not  repugnant  to  the  principles 
of  reason  if  organized  in  a  way  to  forbid  the  presuppo- 
sition of  feminine  incapacity,  rendering  thus  marital 
caprice  more  difficult.  The  modern  foundation  of  this 
institution  is  the  idea  of  the  unity  of  the  family ;  the  free- 
dom of  the  woman  is  limited  not  because  she  is  woman 
but  because  she  is  wife.  Though  between  the  two 
sexes  there  should  be  an  equality  of  civil  rights,  in  the 
family  rules  of  harmony  and  preservation  should  not 
be  lacking.  Unity  is  obtained  by  giving  the  husband 
the  predominating  vote,  because  he  possesses  the  strength 
and  therefore  must  be  the  head  or  treasurer,  and 
because  he  has  the  broader,  deeper,  and  more  concen- 
trated mind.  The  general  control  of  the  family,  there- 
fore, belongs  to  the  man;  to  the  woman,  gifted  with  a  mind 
more  capable  of  grasping  particulars,  belongs  the  care 
of  the  house,  which,  accepted  as  a  duty  and  not  as  a 
burden,  is  a  vast  field  where  kindness,  taste,  the  virtue 
of  saving,  and  domestic  piety  form  a  beautiful  whole. 
A  husband  should  protect  his  wife,  and  the  protection 
would  be  useless  if  it  could  not  prevent  her  wasting  the 
estate.  The  authority  of  the  judge,  whose  protecting 
intervention  is  necessary,  especially  when  it  is  a  ques- 
tion of  a  business  in  which  the  husband  has  a  particular 
interest,  controls  the  unreasonable  disagreement  of  the 
husband.  It  has  been  observed  that  if  this  intervention 
is  removed  on  the  pretext  of  emancipating  the  wife, 


EQUALITY  OF  THE  SEXES  683 

she  is  made  a  slave  to  the  caprices  of  a  stingy  or  specu- 
lating husband.  The  wife  generally  wants  peace  in  the 
house  even  at  the  cost  of  the  sacrifice  of  her  money,  and 
therefore  consents  to  its  waste.  In  ancient  times  the 
marital  authority  was  practically  the  result  of  the 
domestic  power,  of  the  conviction  of  the  inferiority  of 
the  woman,  and  of  the  right  of  self-defense  in  Germanic 
law.  In  India  and  Rome  the  woman  was  not  allowed  the 
"patria  potestas,"andwas  subjectto  a  life-long  guardian- 
ship. In  Attic  law  the  power  that  a  husband,  father, 
and  grandfather  exercised  over  a  woman  had  a  char- 
acter of  defense  very  similar  to  that  of  the  "mundium" 
among  the  Germans.  The  "manus"  and  the  "patria 
potestas"  of  the  Romans  were,  on  the  other  hand,  part  of 
the  "dominium,"  of  which  they  seem  to  have  been  forms. 
With  time  the  "manus"  weakened,  especially  in  the  Anto- 
nine  epoch,  and  the  tendency  to  the  legal  equality  of  the 
two  sexes  began  to  prevail.  Canon  law  could  not 
forget  that  woman  was  made  of  the  rib  of  a  man  and  did 
not  favor  the  Roman  tendency.  On  the  other  hand,  there 
was  the  "mundium"  of  barbaric  law  exercised  at  first  by 
the  relatives  of  the  wife  and  then  by  her  husband.  A 
transition  period  sprang  up  in  which  an  unmarried  woman 
was  subject  to  the  Roman  law  and  was  considered  as 
the  free  owner  of  her  own  possessions,  while  to  the  wife 
the  canon  and  barbaric  law  was  applied.  Marital 
authority  originated  thus,  but  in  the  fullness  of  time  it 
did  not  fail  to  change  its  significance  and  to  adopt  the 
humanity  of  the  Romans.  Criscuolo,  in  his  monograph 
"La  Condizione  della  Donna  nel  Diritto  Italiano," 
states  with  great  clearness  the  different  phases  of  marital 
power. 

§  459.  Socialistic  Equality  of  the  Sexes.  Bebel  has 
written  a  book  entitled  "Die  Frau  und  der  Socialmus," 
with  the  evident  purpose  of  finding  a  great  aid  to 


684  THE  CONJUGAL  RELATION 

socialistic  principles  in  women's  interests  and  feel- 
ings. Bebel,  by  a  rapid  examination  of  the  condition 
of  women  in  various  times  and  among  various  peoples, 
in  which  he  avails  himself  of  the  researches  of  Bachofen, 
Morgan,  McLennan,  and  of  the  work  of  Engels,  "Die 
Ursprung  der  Familie,  des  Privat-eigenthemus  und  des 
Staats,"  tries  to  show  that  the  oppression  of  woman, 
like  all  social  oppression,  is  a  derivative  of  economic 
dependence  and  individual  ownership.  Such  depend- 
ence did  not  exist  in  the  primitive  times  of  the  right  of 
the  order  and  of  feminine  relationship,  but  arose  in  the 
epoch  of  the  patriarchal  family  and  the  right  of  the  father- 
owner.  The  enslaving  of  woman,  made  stronger  and 
developed  in  ancient  society,  continued  in  the  Middle 
Ages  favored  by  Christianity,  with  its  preference  for 
celibacy  and  monasticism,  and  has  been  mitigated  only 
under  the  progressive  civilization  of  Western  countries. 
In  contemporaneous  society  woman  finds  no  satisfac- 
tion allowed  her  sexual  instinct  outside  of  indissoluble 
and  monogamic  marriage,  a  distinct  form  of  individual 
ownership.  Marriage,  in  the  wealthy  classes,  is  a  busi- 
ness and  investment,  a  method  for  the  production  of 
capital ;  in  the  disinherited  classes,  it  is  a  union  to  which 
poverty  accompanied  by  roughness  and  brutality  is  not 
foreign.  Even  worse  is  the  condition  of  the  great 
number  of  women  condemned  to  remain  unmarried  be- 
cause of  the  accumulation  of  property  in  the  hands  of  a 
few,  militarism,  and  the  quantitive  disproportion  of  the 
sexes.  Only  when  woman  is  equal  to  man  in  every 
respect  and  in  her  variety  of  opportunities  will  her  cause 
be  brought  to  the  front  and  put  in  a  condition  favorable 
to  development.  The  differences  will  disappear,  placing 
woman  in  the  same  position  and  conditions  as  man, 
freeing  her  from  the  subjection  in  which  she  has  been 
kept  for  centuries.  The  statutes  are  only  the  social 


CRITICISM  OF  EQUALITY  685 

state  of  a  country,  mirrored  in  a  certain  number  of  legal 
decisions.  The  marital  authority  is  an  institution 
founded  on  the  "manus"  and"mundium;"  the  prohibition 
of  the  franchise  is  a  survival  of  an  old  prejudice.  Jus- 
tice demands  the  perfect  similarity  of  the  two  sexes  as 
to  rights,  because  there  is  no  natural  difference.  There 
will  come  a  time,  says  Bebel,  when  capitalism  will  be 
routed  and  in  its  place  collective  property  and  equality 
will  reign.  Then  woman  will  be  socially  and  eco- 
nomically independent  of  man.  Educated,  like  man, 
she  will  be  able  to  direct  her  efforts  to  what  pleases  her, 
she  will  choose  in  matrimony  the  man  of  her  heart  or 
will  be  chosen,  and  will  be  able  with  perfect  freedom 
to  accept  or  refuse.  Marriage  will  be  perfectly  free  and 
will  be  completed  without  the  intervention  of  a  magis- 
trate, and  will  last  only  until  the  love  which  caused  it 
has 'disappeared.  In  this  way  humanity  will  return  to 
its  starting  place,  reaching  that  happiness  to  which  it 
always  aspires  and  which  it  does  not  and  cannot  find 
in  society  as  constructed  at  present.  Marriage  is  evil, 
since  its  constructive  principle  is  private  property. 

§  460.  Criticism  of  the  Socialistic  Equality  of  the  Sexes. 
Bebel  falls  into  the  same  error  as  the  other  contem- 
poraneous socialists,  supposing  that  the  whole  social 
evolution  owes  its  origin  to  a  single  cause,  the  economic 
factor,  an  error  which  we  have  criticized  above.1  Like 
the  other  socialists,  he  does  not  understand  the  theory  of 
evolution  because  he  does  not  realize  the  process  of  in- 
creasing specification  or  individualization,  and  con- 
fuses it  with  the  artificial  control  of  capital.  Wherever 
he  sees  the  form  of  a  human  individuality,  there  he 
recognizes  a  production  of  capital  and  private  owner- 
ship. Of  course,  private  property  is  the  result  of  the 
principle  of  individual  personality,  but  not  every  mani- 

lCf.  §  310  ante. 


686  THE  CONJUGAL  RELATION 

festation  of  this  principle  is  property.  The  individual  — 
let  us  repeat  it  with  Aristotle — is  shown  not  only  by 
possession  but  also  by  affection.  It  is  beyond  dispute 
that  the  patriarchal  family  owes  its  origin  to  the  right 
of  the  father  as  owner.  But  it  cannot  be  denied  that 
this  right  later  became  an  ethical  power  of  a  character 
entirely  different  from  the  domestic  authority;  a  power 
belonging  to  the  father  and  mother  founded  upon  the 
duty  of  nourishment,  education,  and  instruction  of 
their  young.  Monogamy  has  a  base  entirely  different 
from  the  right  of  private  property  because  it  is  the 
deepest  demand  of  the  love  and  intimacy  of  an  absolute 
union  of  man  and  woman.  The  patriarchal  family 
itself,  though  so  closely  connected  with  ownership,  is  a 
product  of  the  evolution  of  relationship  which  was  first 
generic,  then  depended  upon  the  physical  certainty  of 
the  mother,  and  finally  was  based  on  the  spiritual  cer- 
tainty of  the  father.  These  phases  of  relationship 
comprehend  economic  causes  accentuating  in  full  the 
periods  of  the  development  of  ownership,  but  at  the 
same  time  they  represent  phases  of  human  love. 
The  condition  of  woman  before  the  patriarchal  age 
could  not  have  been  better  than  her  later  state,  because 
woman  in  the  days  of  bestial  lust  and  infamous  com- 
munion must  have  depended  in  whole  or  in  good  part 
upon  the  components  of  the  tribe.  In  matriarchal 
families  promiscuity  was  limited  but  not  destroyed,  and 
woman  could  not  have  been  protected  from  the  violence 
of  the  strong,  although  she  was  the  centre  of  the  family, 
and  apparently  free.  The  revolution  of  women  and 
their  consequent  social  supremacy,  idealized  by  Bacho- 
fen,  cannot  be  considered  as  an  event  in  history.  A 
matriarchy  understood  as  a  government  organized  by 
women  was  not  possible  in  primitive  times,  in  which  their 
sense  of  shame  and  consciousness  of  self  were  not  fully 


HYPOTHESIS  OF  THE  SOCIALISTS        687 

developed,  and  when  strength  was  all  dominant.  Nor 
is  it  true  that  Christianity  was  the  greatest  enemy  of 
the  freedom  of  women,  because  it  makes  the  conception 
of  her  sublime.  The  ideal  of  the  woman  of  antiquity 
lay  in  childbearing,  and  in  being  a  servant  to  the  man, 
in  the  education  of  the  children  until  a  certain  age,  in 
acting  as  cook  or  handmaid,  and  in  remaining  in  her 
home.  Christ,  as  Bonghi  writes  in  "La  Donna  e  1'Av- 
venire,"  discovered  the  spirit  of  woman  and  understood 
the  love  which  redeemed  and  saved  her.  The  women 
loved  him,  followed  him,  and  touched  his  garments  to 
be  made  whole  in  body  and  soul.  Christ  forgave  the 
sins  of  the  woman  who  bathed  his  feet  with  her  tears, 
because  she  had  loved  much.  He  refused  to  punish  the 
sinner,  and  cursed  him  who  coveted  woman  as  an  instru- 
ment of  pleasure;  he  desired  marriage  to  be  the  com- 
plete union  of  soul  and  body.  He  denied  man  the 
right  of  repudiation.  He  loved  his  mother  tenderly. 
He  wrought  his  first  miracle  at  a  wedding  banquet.  He 
liked  little  children  to  be  about  Him.  He  exalted 
woman,  because  his  father's  wife  and  his  mother  was  a 
virgin.  In  this  supernatural  conception  of  the  virgin 
wife  and  mother  lies  the  combination  of  the  idealiza- 
tion of  the  Christian  woman.  But,  thus  idealized,  woman 
could  no  longer  be  content  with  the  Roman  praise. 
"She  wove  the  wool,  and  kept  her  home."  Her  soul 
was  enflamed ;  she  turned  Christian  before  man ;  she  felt 
that  Christ  had  done  more  for  her  than  for  him,  since  he 
had  raised  her  from  the  lowest  degradation  —  had  done 
more  than  her  happiest  dreams  had  pictured,  or  than 
Greek  or  Latin  mind  or  fancy  has  imagined. 

§  461.  Facts  of  the  Socialists  are  Untrue.  The  des- 
cription that  Rebel  gives  of  the  actual  state  of  women 
has  many  false  tints  and  is  far  from  true;  it  not 
being  true  that  the  greater  part  of  the  marriages 


688  THE  CONJUGAL  RELATION 

among  the  wealthier  class  are  due  entirely  to  financial 
calculations  and  that  almost  all  the  unions  in  the  lower 
classes  are  marked  by  poverty,  roughness,  and  brutality. 
It  is  undoubtedly  true  that  selfishness  and  short-sighted- 
ness are  the  rules  of  the  human  conduct  but  we  must  not 
forget  that  the  sentiments  of  sympathy  and  reason  are 
also  active,  and  that  they  develop  with  the  progress  of 
time.  The  relation  between  the  sexes  is  not  actually 
whatitshould  be.  It  is  still  far  from  perfect,  butitcannot 
be  said  that  it  is  profoundly  perverted  or  that  it  consti- 
tutes a  continual  manifest  and  general  negation  of  morals. 
And  would  women  return  to  their  normal  state  if  society 
admitted  that  the  sexual  instinct  could  be  legitimately 
satisfied  out  of  wedlock?  Bebel  lamented  that  society 
furnished  woman  no  means  for  the  satisfaction  of  the 
sexual  instinct  except  in  marriage,  as  if  it  could  furnish 
any  other  with  the  consent  of  the  ethical  essence  of  man. 
Contemporaneous  society  admits  woman  to  certain  lucra- 
tive employments,  which  can  be  especially  enjoyed  by 
those  who  do  not  marry.  In  some  countries  the  employ- 
ment of  the  woman  in  public  and  private  offices  is  greater, 
in  others,  there  is  an  effort  to  regulate  it,  with  a  regard 
to  the  particular  characteristics  of  woman,  in  order 
not  to  destroy  her  real  end,  and  to  control  competi- 
tion with  man.  To-day  woman  has  acquired  civil  equal- 
ity, and  it  will  not  be  long  before  she  will  in  all  cases  be 
capable  of  being  guardian,  trustee,  of  being  one  of  the 
family  council,  and  arbitratrix.  The  legal  equality  of 
woman  even  in  respect  to  the  obligations  of  conjugal 
fidelity,  is  fiercely  sought  and  will  soon  gain  recognition. 
The  legal  incapacities  of  the  married  woman,  of  which 
we  have  written  in  this  chapter,  do  not  exist  in  all  coun- 
tries, and  are  strongly  combated.  The  patria  potestas  is 
given  to  the  mother,  who  retains  it  after  the  dissolution 
of  the  marriage.  It  cannot  be  said  that  woman,  in  a  civil- 


FACTS  OF  THE  SOCIALISTS  689 

ized  country,  is  very  far  from  the  day  of  her  enfranchise- 
ment, because  the  common  opinion  in  all  such  States  is 
not  absolutely  opposed  to  it,  apart  from  all  theoretical 
questions  of  the  political  rights.  They  enjoy  public 
rights  ;forexample,  that  of  petition,  association,  etc.  Can, 
by  chance,  this  condition  of  women  be  called  servitude? 
Such  condition  may  not  be  perfect,  we  may  need  to  draw 
all  the  logical  consequences  of  the  admitted  principles  of 
civil  equality,  we  may  even  need  to  recognize  others  be- 
sides, but  certainly  we  can  no  longer  speak  of  the  enslave- 
ment of  women.  Bebel  wishes  absolute  equality  because 
he  starts  out  with  the  erroneous  hypothesis  of  the  com- 
plete identity  of  the  nature  of  the  two  sexes,  and  sees 
only  differences  due  to  education  and  environment,  dis- 
agreeing thus  even  with  the  Darwinists.  In  his  mind  the 
future  of  woman  lies  in  a  recourse  to  the  remote  past  and 
free  love,  involving  only  temporary  and  private  respon- 
sibility. Love,  accepting  the  conceptions  of  the  German 
socialists,  would  have  to  retravel  its  road,  destroying  all 
its  history,  in  which  it  has  always  grown  more  individual- 
istic and  ideal.  Even  in  human  times  love  has  striven 
to  be  free,  but  its  freedom  has  been  interpenetrated  with 
reason,  which  transfigures  the  affections  and  makes  them 
permanent  and  not  capricious.  The  necessity  of  consent 
in  such  times  is  not  the  denial  of  the  nature  of  things. 
Woman,  concludes  Bonghi,  will  not  be  in  the  future  the 
handmaid  or  careful  housekeeper  of  the  husband,  but 
will  be  his  real  helpmate  and  friend.  Woman,  more  cul- 
tured and  more  versed  in  the  affairs  of  life,  will  not  lose 
the  eternal  feminine.  She  will  be  intellectually  vivacious, 
affectionate,  ruled  by  sentiment,  quick  of  perception, 
keen  in  discernment,  pitying,  helping,  pious,  and  kind, 
as  she  is  now,  and  at  the  same  time  she  will  be  active  in  the 
factory,  office,  courts,  and  assemblies,  and  will  expand  the 
treasure  of  her  mind  as  she  does  not  do  now. 


690  THE  CONJUGAL  RELATION 

§  462.  Woman  Should,  however,  be  given  Equal  Oppor- 
tunity. Spencer,  in  his  last  book,  "Justice,"  asks  if 
the  sphere  of  action  of  the  individual  gifted  with  the 
higher  faculties  should  not  be  larger  than  that  of  him 
who  is  inferior.  If  a  man  of  large  stature  and  body 
occupies  a  greater  space  than  one  who  is  little  and  thin, 
it  is  just  that  the  activities  of  the  great  and  the  small, 
of  the  strong  and  the  weak,  of  the  superior  and  inferior 
should  have  boundaries  too  restricted  for  one  and  too 
extended  for  the  other.  But  he  hastens  to  add  that 
the  metaphor  must  not  be  taken  literally,  because  the 
freedom  of  single  individuals  is  not  the  fact  presented 
in  that  simple  cubical  form.  The  man  gifted  with 
higher  faculties,  inasmuch  as  he  has  rights  to  physical 
safety,  the  development  of  his  energies  and  their 
derivative  products,  makes  no  attempt  upon  the  physical 
health,  the  free  development  and  ownership  of  his  fellow- 
being,  who  is  his  inferior.  The  refusal  to  the  inferior  man 
of  a  sphere  of  action  equal  to  that  given  the  superior  is 
equivalent  to  the  addition  of  a  disadvantageous,  artificial 
rule  to  his  natural  infirmity,  which  sympathy  and  pity 
will  sooner  or  later  lead  us  to  destroy.  Neither  is  it  pos- 
sible to  proportion  a  man's  freedom  to  his  capacity, 
since  neither  can  be  measured.  Putting  aside  every 
other  motive,  practical  considerations  force  us  to  treat 
men  equally  as  to  freedom,  whatever  be  the  degree  of 
development  of  which  they  are  potentially  capable.  Now 
this  conception  with  changed  terms  is  applied  by  the  same 
author  to  the  relations  between  the  rights  of  men  and 
women.  There  are  women  who  have  a  forced  intelligence 
greater  than  that  of  not  a  few  men.  If  the  quantum  of 
freedom  should  be  controlled  by  the  capacity  (admitting 
that  the  operation  be  possible)  there  should  in  such  cases 
be  no  attention  paid  to  the  difference  of  sex.  Starting 
out  with  the  fact  that  the  average  of  physical  and  mental 


EQUAL  OPPORTUNITY  691 

force  in  woman  is  inferior  to  that  in  man,  we  do  not  over- 
come the  obstacle  because  we  have  no  means  of  estab- 
lishing the  proportion  between  the  two  averages,  and  are 
then  forced  by  sentiment  to  compensate  the  inferiority 
with  greater  artificial  advantages.  Equity  demands  that 
if  we  do  not  do  anything  to  advance  woman  artificially, 
we  should  at  least  abstain  from  placing  difficulties  in  the 
path  of  the  development  of  her  natural  energies.  If  men 
and  women  are  considered  as  independent  members  of 
the  same  society,  in  which  each  should  take  care  for  his 
needs  as  best  he  can  it  is  not  equitable  to  subject  woman 
to  restrictions  concerning  occupation,  profession,  or  ca- 
reer. Woman  must  enjoy  the  same  freedom  as  man  and 
enjoy  the  fruits  of  her  knowledge  and  ability.  Of  the 
equal  rights  which  woman  has  before  marriage,  equity 
demands  she  should  preserve  thereafter  all  those  which 
are  not  contradictory  of  that  state; — such  as  the  rights  to 
physical  well-being,  property  in  acquired  chattels,  freedom 
of  belief  and  speech.  Such  rights  should  not  be  subject 
to  any  limitations  except  as  they  are  opposed  to  explicit 
clauses  in  the  contract.  The  limitations  vary  with  time 
and  place,  and  upon  the  failure  of  fixed  data  we  must  be 
content  with  approximation.  As  cases  differ  and  condi- 
tions vary  it  is  very  difficult  to  be  precise  about  the  recip- 
rocal rights  of  control  of  the  two  consorts.  It  is  neces- 
sary to  take  so  many  circumstances  into  account  which 
it  is  not  possible  to  foresee,  even  in  the  case  of  a  disagree- 
ment between  two  wills.  But  this  much  is  certain:  the 
balance  of  authority  should  always  incline  to  the  side  of 
man  who  is  ordinarily  gifted  with  better  judgment.  But 
in  such  questions  reasoning  has  a  limited  force,  because 
all  depends  upon  the  character  of  the  parties.  From 
what  Spencer  says  we  draw  two  conclusions:  the  first  is 
that  he,  like  ourselves,  believes  in  the  principle  of  the 
civil  equality  of  women ;  the  second  is  favorable  to  the 


692  THE  CONJUGAL  RELATION 

idea  of  Stuart  Mill,  that  the  regulation  of  the  rights  of 
husband  and  wife  should  depend  more  upon  the  variety 
of  the  contract  than  upon  law.  But  Spencer  seems  to 
admit  what  Mill  does  not;  that  in  case  of  a  dispute  be- 
tween the  husband  and  wife  we  should  in  the  abstract 
give  preference  to  the  man.  In  respect  to  political  rights 
we  may  say  preliminarily  that  Spencer  declares  himself 
opposed  to  giving  them  to  woman,  since  she  does  not  bear 
some  burdens  imposed  on  man,  such  as  military  service. 
§  463.  System  of  Property  in  Matrimony.  There 
are  four  systems  which  control  property  in  marriage; 
two  of  them  can  be  called  absolute,  and  two  rela- 
tive or  medial.  The  system  of  communion  is  that  in 
which  the  goods  of  the  husband  and  wife,  both  prior  and 
posterior  to  marriage,  are  put  in  a  fund  whose  property 
is  common  but  whose  administration  is  given  to  the  hus- 
band. Such  a  system  is  preferred  by  the  philosophers, 
for  example,  by  Trendelenburg  and  Rosmini,  because  it 
makes  for  the  ideal  of  a  full  union.  Then  the  system  of 
the  separation  of  goods  (preferred  by  the  jurists  who  are 
friends  of  precaution  and  of  the  personal  freedom  of 
woman)  means  that  the  goods  of  the  husband  and  wife, 
without  difference  as  to  priority  or  posteriority  to 
coverture,  are  kept  entirely  distinct.  The  two  relative 
systems  are  the  system  of  dowry  (dos)  and  of  common 
ownership  of  utilities;  the  first  is  nearer  the  system 
of  separation,  and  the  second  nearer  to  that  of  com- 
munion. The  dowry  consists  of  a  quantity  of  goods 
which  the  woman  contributes  upon  her  .marriage  to 
bear  some  of  the  burdens  of  matrimony.  The  hus- 
band has  the  administration  and  enjoyment  but  the 
property  is  in  the  wife.  In  the  communion  of  utilities, 
the  property  remains  separate,  the  en  joy  mentis  common, 
and  the  husband  has  the  right  of  administration.  Law 
furnishes  a  remedy  of  separation  against  the  possible 


HISTORY  OF  PROPERTY  693 

consequences  of  a  poor  administratioh  in  the  two 
relative  systems. 

§  464.  History  of  Property  in  Matrimony.  Among 
the  Romans  marriage  entered  into  with  the  "conventio 
in  manu"  caused  the  transfer  of  all  the  goods  from  the 
wife  to  her  husband,  but  without  the  "conventio  in 
manu,"  a  wife  preserved  the  free  disposition  of  her  prop- 
erty. The  "conventio"  was  first  the  rule  and  later  the 
exception.  Side  by  side  with  the  system  "sine  con- 
ventione"  developed,  little  by  little,  with  many  precau- 
tions. There  was  a  prohibition  against  mortgaging  a 
dotal  estate,  there  was  absolute  inalienability  of  the 
dotal  property,  and  through  this  came  the  general 
mortgage  of  the  husband's  goods.  Such  a  system  of 
protection  flourished  for  a  long  time  in  Europe,  but 
in  the  countries  of  the  Frankish  common  law  the  com- 
munion of  goods,  an  institution  of  the  Germanic  people, 
was  allowed  and  generally  followed.  The  French  Code 
allows  the  communion  of  the  common  law,  and  the  dower 
rule  much  changed.  In  Italy,  on  the  other  hand,  the 
Roman  rule  of  dowry  prevails.  This  dotal  property,  in- 
tended to  support  the  burdens  of  the  marriage,  must  be 
inalienable.  But  it  has  been  observed  that  the  logic  of 
absolute  inalienability  demands  that  the  legislature 
impose  the  dower  system  as  a  necessity,  so  that  all  the 
goods  of  the  wife  be  made  her  dowry.  The  alienation  of 
the  dowry  can,  however,  be  permitted  by  judicial  au- 
thority, whenever  there  is  necessity  or  an  evident 
advantage  in  it.  It  is  necessary  that  law  protect  the 
interests  of  the  children,  and  at  the  same  time  place 
confidence  in  the  affection  of  the  parents.  An  absolute 
and  inflexible  protection  of  the  children's  interest  is 
blind  and  sometimes  produces  an  opposite  effect. 

§465.  History  of  Dowry.  The  system  by  which  a 
husband  could  not  alienate  the  goods  of  his  wife  was 


694  THE  CONJUGAL  RELATION 

recognized  in  India  under  the  name  of  "stridhan." 
Her  own  property  included  (according  to  Mitakshara, 
one  of  the  oldest  treatises  on  Indian  law)  what  was 
given  to  her  by  her  father,  mother,  brother,  or  husband 
before  marriage  and  (added  this  same  treatise  extend- 
ing the  conception  of  "stridhan"  and  quoting  Manu) 
what  she  acquired  by  heredity,  partition,  purchase, 
occupancy,  or  discovery.  Maine  thinks  that  "stridhan" 
was  a  derivative  of  the  custom  of  paying  the  price  of  the 
bride  on  the  eve  of  the  wedding,  part  to  the  father  as  an 
indemnity  for  the  transmission  of  authority,  and  part  to 
the  bride  herself.  A  certain  number  of  Aryan  customs,  it 
seems  probable,  gave  the  woman  the  goods  which  she  ac- 
quired and  rights  which  she  enjoyed  as  part  of  the  pur- 
chase price,  once  thought  the  only  type  of  her  personal 
property.  The  relation  between  the  Indian  "stridhan" 
and  the  Roman  "dos"  is  evident,  though  the  "stridhan" 
was  rudimentary.  We  know  that  the  Brahmins  combated 
the  privileges  accorded  by  the  ancient  law  to  women.  In 
the  old  law  there  is  no  trace  of  the  custom  of  burning  the 
widow  alive  upon  the  funeral  pyre  of  her  husband.  They 
were  influenced  by  the  belief  that  the  condition  of  the  de- 
ceased would  be  ameliorated  in  the  world  to  come  by  the 
expiatory  rites,  and  they  considered  heredity  as  the 
foundation  of  such  rites,  which  were  a  kind  of  compen- 
sation or  great  sacrifice  on  the  part  of  the  heir,  with 
the  purpose  of  helping  the  spirit  of  the  dead.  They 
taught  that  woman,  through  her  physical  weakness 
and  retired  life,  was  not  fit  to  fulfill  the  sacred  rites, 
and  therefore  they  tried  to  restrict  the  sphere  of  her  per- 
sonal property  in  conformity  with  their  progressive 
tendencies  of  subjecting  private  ownership  in  general 
to  religious  servitude.  The  most  liberal  legal  school  of 
India,  that  of  Bengal,  accords  to  the  widow  without  chil- 
dren alife  estate  in  her  husband's  property.  In  thiscoun- 


HISTORY  OF  DOWRY  695 

try  suttee,  that  is,  the  immolation  of  a  childless  widow, 
was  general.  The  Brahmins  encouraged  the  victim  to  the 
sacrifice  on  the  pyre  to  avoid  her  being  clothed  with  prop- 
ertyrights.  From  every  point  of  view,  the  "stridhan"  and 
the  "dos"  are  Aryan  customs  common  to  all  the  peoples 
of  that  race.  They  have  different  destinies  in  history 
through  the  influences  of  causes  sometimes  infavorable 
to  their  development,  or  suited  to  give  them  a  rigorous 
and  long  existence. 


696  MARRIAGE  AND  DIVORCE 


CHAPTER  XIX 
INDISSOLUBLE  MARRIAGE  AND  DIVORCE 

THE  IDEAL  OF  INDISSOLUBILITY.  —  THE  CONCRETE  DEMANDS 
OF  LIFE. —  THE  QUESTION  OF  DIVORCE  IN  RELATION  TO  INDI- 
VIDUAL RIGHTS  AND  SOCIAL  AND  HISTORICAL  FACTS. —DIVORCE 
AND  THE  CHURCH.  —  CAUSES  OF  DIVORCE.  —  PRECAUTIONS. 

§  466.  Marriage  should  be  Indissoluble.  There  is 
no  doubt  that  the  ideal  marriage  is  indissoluble. 
Matrimony  is  the  absolute  union  of  a  man  and 
woman.  It  is  the  perfect  interpenetration  of  the  vari- 
ous sensual  and  spiritual  qualities  of  the  two  sexes. 
It  is  the  "viri  et  mulieris  conjunctio,  individuam  vitae 
consuetudinem  continens."  Such  a  union  would  not 
be  perfect  and  absolute  in  the  eyes  of  rational  law  if  it 
lacked  the  irrevocability  which  is  shown  in  an  ardent 
affection's  promise  of  eternal  love,  in  the  solemnity 
of  the  celebration  of  matrimony,  which  accompanies 
no  other  contract,  in  the  pure  emotion  of  the  parents  at 
the  cradle,  in  the  need  of  educating  the  growing  chil- 
dren, who  are  always  binding  their  parents  to  them  by 
new  and  stronger  ties.  The  irrevocability  is  shown,  too, 
by  the  mutual  duties  and  rights  which  make  the  adult 
children  repay  the  care  spent  upon  them  in  their  infancy 
and  early  youth.  And  it  is  necessitated  by  the  inequality 
of  the  sexes,  by  which  a  woman  once  married  is  never 
the  woman  of  her  youth,  as  it  is  said  in  the  Bible. 

§  467.  Morality,  Religion,  and  Politics  Demand  In- 
dissoluble Matrimony.  Morality  recognizes,  in  indis- 
soluble matrimony,  love  controlled  by  reason,  which 


CIVIL  MARRIAGES  697 

gives  the  bond  of  passion  its  character  of  necessity 
and  permanence.  At  the  touch  of  reason  passion  loses 
its  blind  and  violent  element  of  sensuality,  and  by 
idealization,  becomes  a  duty.  It  is  not  true  that  in- 
dissolubility  destroys  freedom,  by  decreeing  a  per- 
petual love.  What  it  destroys  is  the  wavering  and 
sensual  desire;  for  love,  transfigured  by  reason,  is  not 
the  negation,  but  the  base  of  moral  freedom,  which 
only  exists  when  impulses  are  governed  by  practical 
mind,  that  is,  a  mind  which  follows  the  laws  of  the  good. 
Human  freedom,  to  quote  Vico,  comes  from  the  mind, 
and  consists  in  restraining  and  directing  the  prompting 
of  lust  which  comes  from  the  body.  Religion  conse- 
crates the  ideas  of  indissolubility,  making  marriage  a 
sacrament,  and  proclaiming,  "Quod  Deusconjunxit,  non 
homo  separet."  The  Church  believes  that  the  mar- 
riage rite  is  a  sacrament,  because  the  conjugal  union,  as 
a  participation  by  man  in  God's  attribute  of  creation,  is 
objectively  a  religious  act,  regardless  of  the  intent. 
And  for  politics,  too  indissoluble  marriage  is  the  ideal, 
because  the  stability  of  the  State  and  its  departments 
rests  upon  the  stability  and  peace  of  its  families:  both 
are  the  result  of  a  complete,  and  therefore  indissoluble 
union. 

§  468.  Civil  Marriages  can  be  Indissoluble.  The  con- 
ception of  civil  marriage  is  not  opposed  to  the  prin- 
ciple of  indissolubility,  as  the  members  of  the  clerical 
school  and  the  champions  of  the  theories  that  made 
the  French  laws  of  1792  claimed.  For  marriage  is 
a  special  contract,  since  it  comprehends  the  absolute 
union  of  persons  of  different  sexes.  In  fact,  there  is 
legislation  which  looks  upon  marriage  as  a  civil  con- 
tract but  holds  it  indissoluble,  as  there  is  legislation 
making  it  religious,  but  allowing  divorce.  From  the 
legal  and  civil  point  of  view  the  orthodox  doctrine  can 


698  MARRIAGE  AND  DIVORCE 

be  followed  that  consent  is  necessary  for  the  creation  of 
the  contract,  but  not  for  its  preservation.  It  can  easily 
be  held  that  consent  is  a  necessary  prerequisite  of  mar- 
riage, which,  however,  must  conform  to  natural  laws  and 
be  absolute  and  irrevocable.  In  this  respect  the  sub- 
jective element  should  be  subordinate  to  the  objective. 
So  in  contract  law,  it  is  not  always  true  that  the  con- 
tractual acts  depend  upon  consent.  The  jurists  say, 
"Quae  ab  initio  sunt  voluntatis,  post  factum  sunt  necessi- 
tatis,"  if  society  or  third  parties  have  an  interest  in  the 
contract.  Civil  marriage  is  not  based  on  the  principle 
of  arbitrary  and  individualistic  ethics.  It  is  a  result 
of  the  conception  of  a  lay  State,  and  of  liberty  of  con- 
science. In  other  words,  logic  does  not  prevent  the 
civil  marriage,  and  refutes  the  theory  of  Grotius, 
Puffendorf ,  and  Thomasius.  For  Grotius,  in  his  defini- 
tion of  marriage,  laid  emphasis  on  the  physical  side, 
practically  allowing  for  no  difference  between  it  and  con- 
cubinage. The  difference,  he  says,  is  one  of  positive  law: 
"Concubinatium  quemdam  verum  ac  ratum  esse  conju- 
gium  etsi  effectibus  quibusdam  juris  civilis  propriis  pri- 
vetur  aut  etiam  effectus  quosdam  naturales  impediment© 
legis  civilis,  amittat."  Puffendorf  believed  that  matri- 
mony, being  consensual  in  origin,  was  subject  to  all  the 
laws  of  contract.  Thomasius  believed  that  indissolu- 
bility,  conjugal  fidelity,  and  marital  authority  are  all 
parts  of  the  conjugal  contract,  and  not  consequences  of 
natural  law.  This  ideal  of  indissolubility  should  not  be 
disregarded  on  the  ground  that  law  does  not  recognize 
contracts  which  result  in  the  abnegation  of  civil  person- 
ality, for  marriage  is  not  a  mutual  renunciation,  but, 
on  the  other  hand,  it  is  the  acquisition  of  a  new  status. 
Even  if  a  husband  and  wife  make  their  two  natures  one, 
as  Rosmini  says,  yet  it  is  impossible  for  them  to  become 
one  and  to  preserve  distinct  and  inalienable  individuality. 


DIVORCE  699 

In  fact  law  protects  their  distinct  personalities.  The  law 
does  not  recognize  irrevocable  contracts,  implying  a  full 
or  partial  alienation  of  personality,  but  recognizes  those 
which,  without  producing  such  an  alienation,  create  a 
higher  order  of  ethical  relations. 

§  469.  Arguments  For  and  Against  Divorce.  The  idea 
of  indissolubility  is  generally  accepted,  both  by  those 
who  combat  divorce,  and  by  those  who  are  not  par- 
tizan.  Kant,  Fichte,  Hegel,  Stahl,  Trendelenburg, 
Rosmini,  Gioberti,  and  Ahrens  agree  with  Hume  and 
Bentham  among  the  English  in  condemning  it.  Comte, 
the  founder  of  positivism,  and  Proudhon  believe  in  it. 
While  Hegel,  Trendelenburg,  and  Ahrens  agree  that  the 
idea  of  matrimony  tends  to  indissolubility,  they  permit 
divorce  on  the  old  principle  that  the  absolute  is  the 
highest  but  the  relative  is  easier  of  attainment.  The 
absolute  union  is  founded  on  love,  and  when  love  dies 
the  union  is  broken  and  matrimony  is  left  without  its 
true  base.  Reason,  to  which  conjugal  love  is  subject, 
in  many  cases  cannot  without  inconsistencies  keep  up 
throughout  life  the  appearance  of  affectionate  relations 
which  are  dead,  when  respect,  which  man  should  keep 
in  proportion  to  the  intrinsic  worth  of  its  objects,  is  lost. 
The  law  is  not  in  proper  relation  to  the  facts,  when,  for 
example,  in  case  of  flagrant  breach  of  fidelity,  it  converts 
the  heroism  of  a  Christian  into  a  contractual  duty.  The 
law,  in  such  and  similar  cases,  in  preserving  marriage 
bonds,  in  the  attempt  to  reawaken  love  where  reason 
cannot  keep  alive  respect,  is  content  with  a  nominal 
union  deprived  of  all  ethical  substance.  It  leaves  the 
natural  order  of  things,  because  love  presupposes  respect 
and  there  cannot  be  an  effect  without  a  cause;  love 
without  respect  is  not  true  love,  but  lust.  The  legal 
preservation  of  a  union  which  no  longer  exists  is  at  best 
a  mask.  Even  Rosmini,  a  formidable  enemy  of  divorce, 


700  MARRIAGE  AND  DIVORCE 

wishing  to  explain  its  existence  among  the  Hebrews, 
writes  that  absolute  union,  the  ideal  marriage,  demands 
for  its  realization  a  man  or  woman  perfect  by  nature.  If 
they  are  not  so  gifted,  to  use  Rosmini's  words,  if  their  in- 
dividual natures  are  so  vitiated  as  not  to  be  worthy  to 
receive  the  completeness  of  union,  which  human  perfec- 
tion demands,  we  must  make  some  indulgence.  .This  in- 
dulgence, one  philosopher  adds,  gives  men  a  little  leeway, 
which  is  wrong  in  itself,  but  whose  vice  is  based  upon  and 
attributable  to  the  same  vice  in  nature.  The  indulgence, 
the  allowance  so  different  from  approval,  is  divorce, 
which  is  not  per  se  good.  It  is  only  proper  to  ask  if  the 
hardness  of  heart  that  necessitated  divorce  among  the 
Hebrews  has  really  disappeared  from  the  earth,  and  if 
human  nature  has  so  changed  to-day  as  to  make  per- 
fection attainable.  It  is  true  that  education  has  made 
great  strides,  that  customs  were  brutal  of  old,  that  now 
we  are  more  delicately  strung,  but  human  nature  retains 
its  old  vices,  if  we  can  judge  from  the  actual  relation  of 
the  sexes.  They  say  that  love  is  unending,  because 
one  being  cannot  cease  loving  another  who  completes 
his  life,  but  they  forget  that  in  becoming  unworthy  of 
love  or  respect  the  completion  ceases.  Proudhon's 
statement  that  the  subordination  of  love  to  justice,  the 
foundation  of  marriage,  can  even  deny  love  is  a  paradox, 
because  the  act  of  subordination  logically  presupposes 
the  existence  of  the  end  subordinated,  which  cannot 
exist,  according  to  Proudhon.  It  is  neither  true  nor 
human  justice  which  is  obtained  by  the  ruin  of 
life,  of  the  utilities  and  interests,  as  there  is  no  con- 
crete moral  good  to  be  had  by  the  elimination  of  the 
inclinations,  affections,  and  passions.  Let  justice  rule, 
but  do  not  let  this  world  perish.  In  marriage  let 
marriage  be  ruled  by  justice,  but  do  not  destroy  love, 
the  informing  principle  of  the  absolute  union.  It  is 


DIVORCE  A  NECESSITY  701 

said  that  the  actuality  is  always  inferior  to  the  idea; 
but  it  need  not  be  opposed  to  it.  From  the  idea  of 
indissolubility  to  the  remedy  of  divorce  there  is  no 
descent.  The  two  terms  are  mutually  exclusive.  To 
prove  this,  put  a  full  union  on  one  side  and  divorce  on 
the  other.  The  truth  is  that,  when  divorce  makes  its 
appearance,  the  real  union  has  ceased.  It  is  not  the 
violent  destruction  of  marriage,  but  the  legal  end  of  a 
union,  which  no  longer  exists  in  fact.  Defining  divorce 
as  a  remedy  and  not  as  a  good  per  se,  after  having  pro- 
claimed indissolubility  as  the  ideal,  it  is  impossible  to 
say  that  divorce  attains  the  ideal.  Only  a  true  eternal 
union  corresponds  to  the  ideal:  divorce  marks  the 
end  of  a  union.  It  begins  where  the  ideal  of  indissol- 
ubility ends,  and  therefore  is  not  in  fact  a  contradiction 
of  it.  If  divorce  is  opposed  to  the  nature  of  matrimony, 
it  must  be  regarded  as  the  greatest  of  evils.  If,  how- 
ever, it  is  looked  upon  as  one  of  the  serious  disorders 
which  are  derived  from  the  defects  of  matrimony,  it 
can  be  considered  as  a  lesser  ill.  The  ends  of  the  rela- 
tion are  the"  defect  of  the  legal  bond  and  divorce.  It  is 
not  claimed  that  divorce  is  not  a  remedy  per  se,  though 
it  is  not  positive,  being  only  the  annulment  of  the  mar- 
riage. A  remedy  is  that  which  fills  what  the  evil  has 
emptied,  that  repairs  what  the  latter  destroys;  and  yet 
there  is  no  contradiction  between  the  conception  of  a 
cessation  and  a  remedy,  since  there  are  many  cases  where 
the  ceasing  of  an  act,  habit,  or  condition  is  a  remedy. 
Some  remedies  aim  only  at  destruction  of  the  evil,  while 
others  have  only  a  reparatory  virtue,  but  most  are  both 
destructive  and  reparatory. 

§  470.  Divorce  a  Necessity  because  of  Human  Frailty. 
Philosophy  of  law  should  not  look  upon  divorce  in  rela- 
tion to  individuals  or  from  their  view-point,  as  ancient 
natural  law  did,  but  should  study  it  in  its  social  aspects, 


702  MARRIAGE  AND  DIVORCE 

weighing  the  advantages  and  evils  which  can  come  to 
society  from  personal  separations  and  dissolution  of 
marriage.  It  must  not  be  forgotten  that  social  interests 
and  conventionalities  should  not  destroy  individual  rights, 
as  the  latter  should  not  be  raised  above  social  rights. 
In  this  case,  as  in  others  like  it,  the  two  terms  tend 
rationally  to  the  harmony  which  comes  from  looking 
upon  the  State  as  an  ethical  organism.  A  State  would 
be  a  single  physical  or  natural  organism,  in  which  the 
part  lives  the  life  of  the  whole,  if  it  absorbed  in  its 
eminent  right  the  rights  of  the  individuals,  who  have 
their  own  personality,  and  realize  the  idea  of  man  in  one 
of  his  branches.  If  divorce  were  not  possible,  but  in  its 
place  there  was  only  legal  separation,  which  keeps  the 
bonds  in  force  and  dispenses  only  with  cohabitation, 
the  evil  would  be  great.  Separation  necessitates  soli- 
tude, embitters  one's  nature,  and  beclouds  one's  mind. 
It  is  a  cause  of  concubinage,  and  of  the  increase  in  the 
number  of  illegitimate  births.  Sometimes,  too,  the 
nominal  bond  which  remains  increases  the  dishonor  of 
the  innocent  party,  since  it  imposes  upon  him,  if  rich,  a 
duty  of  paying  with  a  brave  mien  for  the  continual  and 
irremedial  infidelity  of  the  other.  The  prosecution  for 
adultery  allowed  by  law  is  of  no  useful  service, 
since  no  one  cares  to  become  ridiculous  by  a  lawsuit, 
to  enforce  a  possible  imprisonment  of  a  few  months 
or  a  year.  Cases  are  not  lacking,  too,  when  murder 
has  been  the  result;  and  not  rare  are  the  acquittals 
upon  the  plea  of  the  unwritten  law.  In  other  cases, 
suicide  brings  an  end  to  suffering  which  the  victim 
cannot  bear.  When  the  system  of  separation  pre- 
vails, the  children  find  their  parents  living  in  illicit 
unions,  a  fact  which  endangers  the  respect  which 
they  should  bear  towards  the  authors  of  their  days. 
It  is  not  true  that  this  system  makes  reunions  of  those 


DIVORCE  A  NECESSITY  703 

once  separated  possible,  because  the  cause  of  the  division 
cuts  deep  before  they  deliberately  place  themselves 
before  judicial  authorities  in  order  to  obtain  the  sentence 
of  separation.  The  proceedings  themselves  increase  the 
division,  and,  in  the  majority  of  cases, destroy  all  reason- 
able hope  of  reconciliation.  And  it  has  been  observed 
that  the  few  reunions  which  have  taken  place  in  the 
higher  classes  of  society  are  pro  forma,  temporary,  and 
dependent  almost  every  time  upon  extrinsic  reasons. 
On  the  other  hand,  we  are  forced  to  agree,  with  those 
who  combat  divorce,  that  not  all  who  want  to  be  freed 
from  conjugal  bonds  would  be  willing  to  marry  again, 
but  from  this  it  cannot  be  supposed  that  the  greater 
number  of  innocent  husbands  and  wives  would  not 
avail  themselves  of  the  opportunity  of  remarriage  given 
by  divorce.  There  are  not  many  men  whose  reflection 
is  deep  and  critical;  old  impressions  are  strong  and 
tenacious.  The  decision  has  its  roots  in  a  complexity 
of  peculiar  and  variable  conditions,  in  the  degree  of 
excitability,  in  the  power  of  reaction  against  impressions, 
in  examples  of  well  assorted  unions.  If  it  is  true  that 
some  people,  who  had  reached  a  certain  age,  victims  of 
conjugal  disillusions,  would  restrain  their  instincts,  this 
cannot  be  said  of  most.  This  is  no  exaggeration  of  the 
animal  tendencies  of  human  beings.  Impulses  of  primi- 
tive vivacity,  although  they  may  decrease,  still  con- 
tinue; and  not  all  succeed  in  stifling  them.  And  until 
that  end  is  reached,  the  two  great  evils  of  the  system  of 
absolute  personal  separation,  concubinage,  and  the  illegit- 
imate births,  will  go  on.  "Malo  electio  est  in  culpa"; 
a  wrong  gives  no  rights,  say  the  enemies  of  divorce ;  and 
clearly  no  few  disillusions  are  born  of  an  improvident 
choice  made  with  a  light  heart.  But  in  the  choice  one  is 
never  bound  to  demand  what  is  truly  perfect,  and  to 
abstain  from  all  that  is  not  so  in  the  fullest  sense  of  the 


704  MARRIAGE  AND  DIVORCE 

word.  All  aspire  to  the  absolute,  but  no  one  attains  it. 
Sometimes  imperfections  are  potential,  in  embryo  at 
the  first,  and  develop  later.  In  other  cases  they  can 
be  learnt  only  through  intimate  experience.  And  even 
if  known  at  the  moment  of  choice,  there  is  always  a 
hope  of  destroying  or  eradicating  them  by  the  new  life, 
by  the  controlling  force  of  affection  which  has  the 
nobility  to  disallow  the  existence  of  refractory  or  un- 
amenable nature.  Would  you  make  a  fable  of  the  soul's 
generous  nature,  where  love  and  worth  act  together  to 
make  men  good,  and  refuse  it  recognition? 

§  471.  Divorce  has  Real  Evils.  We  must  not,  how- 
ever, deny  the  real  evils  of  divorce.  Above  all, 
society  would  be  forced  often  to  submit  to  the  scandal 
of  the  marriage  of  the  divorced  and  culpable  party 
with  the  person  who  was  the  cause  of  his  fault.  For 
the  statutes  forbidding  this  are  useless  because  of 
the  legal  uncertainty  of  the  adultery.  In  the  second 
place,  it  cannot  be  in  accord  with  the  sentiments  of 
civilized  nations,  particularly  those  of  southern  Europe, 
that  a  woman  who  has  been  the  wife  of  a  man  still  living, 
should  be  the  wife  of  another,  or  that  a  man  should  be 
the  husband  of  two  women,  both  of  whom  are  living, 
or  further,  that  the  children  should  have  at  the  same 
time  a  stepfather,  a  stepmother,  and  their  own  parents. 
It  is  true,  however,  that  customs  alter  with  years,  and 
perhaps  this  repugnance  may  become  markedly  modified. 
In  the  third  place,  it  is  not  an  unfounded  fear  that 
divorce  will  be  obtained  for  causes  prepared,  with  malice 
prepense,  by  those  who  wish  without  cause  to  break  the 
marital  yoke.  Acts  of  severe  injustice,  cruelty,  and 
desertion  will  be  committed  with  the  secret  intention 
of  forcing  a  divorce.  Cases  will  not  be  impossible 
where  husbands  will  make  opportunities  for  their  wives' 
unfaithfulness  in  order  to  gain  a  divorce  and  remar- 


REAL  EVILS  705 

riage.  All  these  evils  will  develop,  threatening  to 
undermine  the  family  and  society,  if  divorce  comes  to 
be  looked  upon  as  a  new  form  of  freedom,  which  can  be 
availed  of  as  any  other.  A  people  which  has  such  a  con- 
ception of  divorce  is  in  a  state  of  moral  decadence,  no 
longer  understanding  the  worth  of  marriage  or  of  ethical 
relationships.  With  them  divorce  will  aid  the  work  of 
corruption,  and  hasten  their  ruin.  The  Romans  were  cor- 
rupt when  they  began  to  avail  themselves  of  the  rights 
of  repudiation  and  divorce  as  means  for  the  attainment 
of  their  individual  wishes,  falling  into  the  excesses  of 
which  history  tells  us.  Justinian  even  made  marriage 
dissolvable  by  mutual  consent,  without  the  introduction 
of  the  judiciary,  or  preliminary  allowance  of  alimony. 
In  France,  too,  in  the  past  century,  morality  was  at  a 
low  ebb,  and  the  law  considered  divorce  as  a  result  of 
the  great  principle  of  freedom.  The  Assembly  allowed 
divorce  upon  the  desire  of  either  husband  or  wife 
for  incompatibility  of  temper.  The  Convention  gave 
more  rein,  abolishing  the  prohibitions  of  remarriage 
within  a  year  after  the  declaration  of  divorce  by  mutual 
consent,  and  allowed  divorce  for  six  months  desertion. 
Matrimony  was,  therefore,  a  status  to  be  proved,  as 
it  is  among  the  savage  tribes;  the  Convention  itself  was 
forced  to  repeal  its  decrees  which  had  produced  infinite 
scandals.  But  if  divorce  is  not  a  new  form  of  freedom, 
but  rather  as  an  enforcement  of  conjugal  duties,  social 
morality,  far  from  being  lessened,  may  be  strengthened  by 
it.  The  fear  of  divorce  in  uncorrupted  ages,  with  people 
of  deep  rooted  customs  will  insure  the  fulfillment  of 
conjugal  duties,  and  make  divorce  a  remedy  of  little 
frequency.  It  has  been  shown  that  divorce  can  coexist 
with  good  morals  and  not  affect  them :  take  the  example 
of  ancient  Rome  for  hundreds  of  years.  In  England 
it  was  allowed  for  many  years,  and  was  rare.  The 


706  MARRIAGE  AND  DIVORCE 

morality  of  a  nation  depends  on  many  causes,  among 
which  must  be  placed  divorce  and  separation.  But  in 
combination  with  many  different  causes  it  is  impossible 
to  determine  what  influence  each  factor  bears  to  the 
resultant  state  of  morality. 

§  472.  The  History  of  the  Catholic  Church  and  Di- 
vorce. Such  are  the  standards  by  which  divorce  must  be 
weighed  in  history.  Allowed  in  America,  England, 
Germany,  Switzerland,  Norway,  Denmark,  Belgium, 
Holland,  France,  and  in  Austria  for  the  Protestants, 
and  at  the  present  forbidden  only  in  Italy,  Spain,  and 
Portugal,  divorce  has  different  results  upon  the  various 
moral  conditions  of  the  nations  dependent  upon  what 
point  of  view  is  taken.  The  Church  from  the  beginning 
endeavored  to  inculcate  the  principle  of  indissolubility 
as  better  conforming  to  Christian  beliefs,  but  met  with 
complete  success  only  in  the  Xlth  century.  It  was  in 
that  century  that  the  conception  of  marriage  as  a  sacra- 
ment, formed  stage  by  stage,  developed  in  its  fullest 
vigor  and  became  a  universal  theory  and  belief  of  the 
Church.  The  victory  of  the  Church  was  connected 
with  the  formation  of  this  belief  and  its  decided  preva- 
lence at  that  time.  The  influence  of  Christianity  is 
manifest  in  the  laws  of  Constantine,  which  restrict  the 
power  of  repudiation,  extended  again  by  the  emperors 
who  succeeded  him.  This  influence  is  seen,  too,  in  the 
limitation  of  divorce  introduced  in  the  Germanic  laws. 
The  Church  carried  out  its  original  plan  better  with  the 
Germans  than  the  Romans,  for  many  reasons.  The 
first  was  the  want  of  the  sacramental  idea  among  the 
Romans;  the  second,  that  the  right  of  repudiation  with 
the  German  belonged  to  the  husband  only,  and  was 
unpopular  on  the  score  of  being  a  privilege,  while  with 
the  Roman  it  could  be  availed  of  either  by  husband  or 
wife.  The  Christian  influence  must  have  had,  and  in 


THE  CATHOLIC  CHURCH  707 

fact  did  have,  greater  influence  where  there  was 
inequality.  We  can  see  that  the  Church  in  its  long 
struggle  against  divorce  was  constrained  to  make  not 
a  few  serious  compromises,  but  this  does  not  mean  that 
it  ever  abandoned  its  ideal.  The  Church  did  what 
every  being  must  do  in  order  not  to  vanish  from  the 
earth;  it  adapted  itself  to  the  experience  of  time  and 
customs.  We  must  not  forget  that  life  is  a  constant 
struggle  for  the  supremacy  of  the  subjective  over  the 
objective,  a  never  ending  compromise  with  external 
contingencies.  And  it  is  only  just  to  recollect  that  the 
exceptions  to  indissolubility  allowed  by  the  Church  are 
not  due  to  the  Germanic  element,  but  to  its  own  prin- 
ciple and  Christian  belief,  in  which  the  law  of  the  spirit 
was  opposed  to  that  of  the  flesh,  the  celestial  city  to  the 
terrestrial,  faith  to  knowledge,  voluntary  poverty  to 
labor.  It  should  not  be  a  cause  of  wonder  that  celibacy 
was  encouraged,  and  that  marriage  came  to  be  looked 
upon  as  a  remedy  of  an  evil,  the  instinct  of  fornication. 
The  ideal  is  always  the  resistance  and  victory  of  the 
spirit  over  the  lusts  of  the  flesh;  marriage,  willingly  or 
unwillingly  entered  into,  is  not  perfection,  since  it  pre- 
supposes a  carnal  union.  The  ideal  of  marriage  which 
the  Church  followed  is  a  sufficient  reason  for  the  excep- 
tions that  it  made  in  the  French  Capitularies,  the  result 
of  an  agreement  between  clergy  and  laity  in  council, 
legislation  of  a  time  when  kings  suffered  for  their  inabil- 
ity to  convert  canons  into  statutes.  The  Capitularies 
recognized  the  right  of  the  woman  to  marry  again,  be- 
cause she  could  not  smother  her  instincts.  It  decreed 
that  if  an  individual  committed  adultery  with  his 
mother-in-law,  he  could  never  marry,  and  she  could 
never  lie  with  her  innocent  spouse,  and  the  latter  could 
marry  again.  The  husband  can  marry  again  if  the  wife 
commits  adultery  with  her  brothers-  or  father-in-law, 


708  MARRIAGE  AND  DIVORCE 

because  she  must  abstain  from  all  carnal  intercourse. 
The  marriage  of  a  priest  and  his  niece  is  invalid ;  both  can 
marry,  but  since  "reprehensible  est  ut  relictam  sacerdotis 
alius  homo  habeat,"  this  marriage  can  be  voided,  and  the 
second  husband,  "si  se  continere  non  potest,  aliam 
accipiat."  So  when  the  principle  of  indissolubility 
became  a  dogma,  through  moral  precepts  becoming  law, 
the  Church  again  adapted  itself  to  the  needs  of  life.  In 
fact,  the  dogma  of  the  Council  of  Trent  was  so  drawn  up 
as  not  to  wound  the  people  living  in  divorce  in  the 
bosom  of  the  Greek  Church  and  the  Venetian  Republic. 
With  the  establishment  of  this  dogma,  the  Church  felt 
the  need  of  increasing  the  causes  of  nullity,  thus  con- 
tinuing to  allow  some  divorces.  But  it  cannot  be  said, 
on  this  account,  that  canon  law  recognized  divorce, 
because  the  causes  of  nullification  are  prior  to  the 
marriage,  or  are  so  imagined,  while  those  of  divorce  are 
posterior. 

§  473.  Causes  for  Divorce;  Adultery.  The  kind 
and  number  of  causes  for  divorce  must  be  deter- 
mined by  principles  of  justice  harmonized  with  social 
conditions.  The  number  of  causes  should  not  be  in- 
creased except  upon  a  clearly  shown  necessity,  in  order 
to  hinder,  or  at  least  not  to  hasten  the  destruction  of 
custom,  nor  should  it  be  so  small  as  to  exclude  just 
and  impelling  causes;  for  divorce  should  be  a  sufficient 
remedy.  The  causes  ordinarily  recognized  by  wise 
legislation  and  reason  are  adultery,  cruelty,  indignities, 
convictions  for  infamous  crimes,  or  life  imprisonment, 
and  desertion.  Adultery  is  always  destructive  of  mar- 
riage, according  to  the  German  word  "ehebruch."  Many 
think  that  the  adultery  of  man  or  woman  is  the  same 
of  itself,  but  that  the  consequences  are  different,  because 
an  adulteress  destroys  the  paternal  relation,  which  is  not 
the  case  with  an  adulterer.  Hence,  statutes  should 


CAUSE  FOR  DIVORCE  709 

require  peculiar  circumstances  to  make  his  adultery 
grounds  for  a  divorce,  as,  for  example,  that  he  keeps  his 
mistress  in  the  home,  or  openly  elsewhere,  or  at  least 
that  the  act  is  accompanied  by  circumstances  which 
made  it  an  indignity  to  his  wife.  This  theory  holds  that 
adultery  in  either  spouse  has  the  same  moral  character, 
but  with  different  consequences.  If  this  difference  in 
result  be  accepted,  ft  follows  logically  that  the  adulteress, 
who  does  more  harm,  should  be  more  severely  pun- 
ished, but  it  does  not  follow  that  the  husband,  except 
in  the  above  cases,  has  aright  to  fail  in  respect  and  honor 
due  his  wife,  to  interrupt  or  perhaps  destroy  by  secret 
adultery  the  continuity  of  the  conjugal  relation,  and 
to  disturb  the  rational  relation  by  making  some  other 
woman  the  mother  of  his  children.  Justice  in  the 
interest  of  woman's  morals  and  dignity  demands  that 
there  be  equality  in  the  crime,  and  that  the  easy  privi- 
lege of  man  be  done  away  with. 

§  474.  Cause  for  Divorce,  Excesses,  Cruelty,  and  Indig- 
nities. And  to  excesses,  cruelty,  and  indignities,  Savoye- 
Rollin  spoke  truly  before  the  Tribunal:  "Think  that  the 
hand  that  should  protect  dealt  the  blow,  that  the  mouth 
which  uttered  the  insults  should  have  used  the  tones 
of  love;  think  that  all  the  conditions  of  this  contract 
which  bind  the  victim  to  the  executioner  are  violated 
by  him,  and  that  all  are  kept  by  the  victim."  The 
conviction  for  infamous  crime  destroys  the  respect  and 
moral  value  of  the  criminal.  Life  imprisonment  does 
the  same,  but  further  renders  the  object  of  marriage  im- 
possible. Desertion  is  also  a  just  cause  for  divorce,  but 
the  statute  should  be  carefully  made  for  the  determina- 
tion of  its  characters,  otherwise  it  will  serve  as  a  cloak 
for  fraud  and  trickery,  as  under  the  French  laws  of 
1792.  We  need  not  admit  as  causes,  insanity,  diseases, 
or  change  of  religion,  because  this  is  contrary  to  the 


710  MARRIAGE  AND  DIVORCE 

feeling  of  kindness  and  piety,  which  would  destroy  the 
most  intimate  union  of  pleasures  and  griefs  through  an 
involuntary  misfortune  in  homage  to  the  most  abject 
selfishness.  As  difference  in  belief  does  not  hinder  the 
contraction  of  marriage,  it  should  not,  upon  subsequent 
development,  be  a  ground  for  its  dissolution.  As  absolute 
union  in  practice  is  obtained  only  more  or  less  imperfectly, 
it  does  not  seem  necessary  to  introduce  these  causes. 

§  475.  Divorce  by  Mutual  Agreement.  Should  divorce 
be  allowed  upon  mutual  consent?  Montesquieu  says 
that  the  law  establishes  causes  for  divorce  where  incom- 
patibility is  greatest.  The  statement  is  true,  because  the 
effective  mutual  incompatibility  is  the  clearest  denial  of 
the  absolute  union  of  matrimony.  In  this  case,  mutual 
consent  is  not  the  cause  of  the  dissolution  of  the  marriage, 
but  is  only  the  sign.  It  cannot  be  alleged  that  allowing 
such  a  cause  of  divorce  is  reducing  marriage  to  contract. 
It  would  serve  to  hide  the  woes  and  shame  of  the  home, 
it  would  avoid  the  ridicule,  and  prevent  the  necessity 
of  a  legal  accusation,  which  sometimes  results  in  impris- 
onment. But  to  ward  off  a  series  of  abuses  fatal  to 
matrimony,  the  law  should  surround  it  with  the  greatest 
precautions.  It  should  declare,  in  imitation  of  the 
French  Code,  that  this  cause  could  not  be  availed  of 
before  or  after  a  certain  age,  and  that  the  consent  of 
parents  or  grandparents  should  be  obtained,  that  half 
the  estate  should  be  given  to  the  children,  that  no  other 
marriage  should  be  contracted  for  three  or  four  years, 
and  that  a  long  time  should  precede  the  granting  of  the 
divorce.  It  is  clear  that  non-reciprocal  incompati- 
bility cannot  be  a  cause  of  divorce,  because  marriage 
is  not  a  contract,  but  something  more  than  a  contract, 
and  therefore  cannot  be  dissolved  without  mutual  con- 
sent. Marriage  cannot  lie  in  the  caprice  of  a  single 
person,  as  happened  in  France  in  the  XVIIIth  Century. 


SOME  PRECAUTIONS  711 

§  476.  Some  Precautions  in  Divorce.  From  others 
precautions  of  the  French  Code  are  not  to  be  dis- 
regarded, which  tend  to  restrain  possible  abuses  of 
divorce.  The  culpable  party,  since  he  is  in  fault, 
should  lose  all  benefits;  the  innocent  party  should  lose 
nothing.  In  the  interest  of  morality  and  family  peace, 
the  culpable  consort  should  not  be  able  to  marry  his 
accomplice.  Any  second  marriage,  in  fact,  should  be 
allowed  only  after  a  long  interval.  Because  of  the  seri- 
ousness of  marriage,  the  divorced  couple  should  not  be 
allowed  to  remarry,  as  happened  in  France.  The  posi- 
tion of  the  children  in  divorce  should  be  the  same  as  a 
case  of  annulment  by  canon  law,  or  separation  by  civil 
law.  The  innocent  party  should  keep  the  children, 
who  lose  no  advantages  given  them  by  law  or  by  the 
nuptial  agreement,  except  those  consequent  on  a  second 
marriage.  Remarriage  can  certainly  not  be  forbidden 
because  of  the  children.  The  father  and  mother  retain 
their  authority,  and  contribute  to  their  education  accord- 
ing to  their  financial  ability.  It  is  evident  that  law, 
owing  respect  to  the  principles  of  liberty,  cannot  deny 
equal  recognition  to  the  separation  of  the  Catholics  and 
the  divorce  of  the  Protestants  or  atheists.  The  law  acts 
upon  all  in  their  quality  of  citizens,  and  gives  them  a 
choice  of  method. 


712         THE  PARENTAL  RELATIONSHIP 


CHAPTER  XX 
THE  PARENTAL  RELATIONSHIP 

THE  TENDENCY  TO  RE-LIVE  IN  OTHERS.  —  THE  BASIS  AND 
PHASES  OF  THE  "PATRIA  POTESTAS."  —  GUARDIANSHIP,  ITS 
KINDS.  AND  TRUSTEESHIP.—  ADOPTION.  —  CHILDREN  BORNOUTOF 
MATRIMONY.  —  THE  RIGHT  TO  PURSUE  THE  FATHER.  —  LEGITI- 
MATION. 

§  477.  Parental  Relationship  a  Derivative  of  the  Con- 
jugal. From  the  conjugal  relation  upon  the  birth  of  chil- 
dren springs  the  parental  relation.  At  first  this  kind  of 
union  is  more  abstract  than  concrete,  since  the  children 
are  not  able  to  join  their  will  and  act  to  the  will  and 
act  of  their  parents,  and  a  partnership  is  not  generally 
effective  without  the  union  of  wills  and  acts.  It  becomes 
concrete  from  the  moment  when  the  children  acquire 
knowledge  of  their  relations  and  ends.  From  that 
moment  the  cooperation  of  will  is  a  fact. 

§478.  Parental  Relationship  is  Fundamental.  Human 
nature  feels  the  need  of  self-amplification.  Man  by 
marriage  lives  in  another;  by  generation  he  relives  in 
others.  By  the  profound  and  wonderful  act  of  gener- 
ation, writes  Rosmini,  the  father  extracts  and  multi- 
plies his  own  feeling,  to  which  he  admits  a  new 
person  who  is  of  the  same  quality  as  the  father,  and 
forever  joined  to  him  in  sentiment,  intelligence,  and 
affection.  The  act  of  generation  is  accomplished  by 
the  cooperation  of  the  three  fundamental  divisions  of 
man,  since  with  true  sentiment  at  the  point  of  highest 
excitement  he  spurs  himself  to  the  attainment  of  his 


IS  FUNDAMENTAL  713 

act,  that  is,  the  creation  of  a  son ;  therefore  between  father 
and  child  there  is  a  close  and  intimate  communication, 
through  the  common  end,  which  is  the  result  of  common 
feeling.  And,  although  the  corporeal  union  ceases  when 
the  child  sees  the  light  of  day,  there  always  remains 
the  union  of  objects,  because  the  son  in  Holy  Writ  is 
called  increment  of  the  parents,  their  off  spring,  and  Dante 
speaks  of  the  child  as  the  flower  and  fruit  of  the  parents. 
From  this  it  appears,  Rosmini  goes  on,  that  the  father  has 
at  first  a  causal  relation  with  his  child,  since  he  created 
the  new  life;  to  this  is  added  a  second  necessary  chain, 
a  communication  of  sentiment  between  the  father  and 
his  child,  which  can  never  be  broken.  Upon  this  double 
tie  depends  the  parental  relation.  In  the  causal  rela- 
tion the  parents  are  always  superior  to  their  children 
and  can  exercise  a  power  which  is  not  licit  over  any 
other  persons.  In  that  of  unity  of  sentiment  they  are 
urged  to  a  special  and  strange  love  for  their  children, 
and  this  love,  as  every  other  true  sentiment  of  mankind, 
is  a  duty.  From  the  connection  of  blood  between  parents 
and  children  are  born  the  "jura  sanguinis,"  common  to 
the  father  and  mother,  indestructible  until  the  child 
leaves  the  domestic  circle.  Such  rights  are  essentially 
individual,  seigneurial,  and  appertain  to  ownership. 
From  the  social  relation,  originating  in  the  blood  rela- 
tionship, but  not  indissoluble  as  the  former,  are  de- 
rived the  "jura  familise"  and  the  rights  of  the  domestic 
society,  belonging  in  particular  to  the  head  of  the  house. 
Nature  infuses  in  the  mind  of  parents  two  sentiments, 
the  sentiment  of  having  children  for  their  own  good, 
and  that  of  having  children  for  the  good  of  the  children 
and  their  descendants.  Children,  without  loss  of  per- 
sonal dignity,  are  medial  in  the  joy  and  good  which  their 
parents  can  obtain  through  them,  and  on  the  other  hand, 
are  ultimate  in  respect  to  the  care  to  which  they  are 


714         THE  PARENTAL  RELATIONSHIP 

entitled.  The  rights  of  the  parents  growing  out  of  the 
children's  medial  condition,  their  duties  emanate  from 
the  ultimate  condition  which  the  children  enjoy  in  their 
own  personality.  To  take  a  child's  earnings  is  a  right 
of  lordship  and  contract,  founded  on  the  sentiment  of 
having  children  for  one's  own  advantage;  the  right  of 
providing  for  a  child's  welfare  is  founded  on  the  senti- 
ment of  having  children  for  their  good  and  the  good 
of  their  descendants.  If  these  two  sentiments  exist  in 
perfection,  it  is  found  that  the  first  is  easily  satisfied  and 
is  willing  to  sacrifice  itself  to  the  second.  It  seems  that 
the  patria  potestas  is  a  seigneurial  right,  subordinate, 
however,  to  the  right  of  control  of  the  domestic  society 
which  makes  for  the  utility  and  good  of  the  children. 

§  479.  Rosmini's  Theory  not  that  of  the  Natural  Cause. 
Rosmini's  theory  must  not  be  confused  with  the  old 
belief  in  the  deduction  of  the  parental  rights  and  the 
patria  potestas  from  natural  and  causal  forces  acquired 
in  the  completion  of  marriage  or  procreation.  This 
natural  force  was  raised  to  the  level  of  spiritual  prin- 
ciples and  ethical  purposes  in  order  to  become  the  human 
basis  of  the  patria  potestas.  Rosmini  has  been  careful 
to  reinforce  the  causal  reasons  with  the  necessary  bond 
of  a  communion  of  sentiment  between  the  parents  and 
children,  by  which  the  parents  are  constrained  to  a 
strong  love  for  their  children,  a  love  which  is  a  duty  as 
well,  he  says.  Now  the  duty  of  loving  one's  children 
resolves  into  that  of  procuring  their  good,  of  protecting 
them,  of  supporting  and  educating  them,  transfusing, 
in  Plato's  words,  the  benefits  of  maturity  and  old  age 
into  adolescence  and  youth,  adding  wisdom  to  strength. 
Thanks  to  this  duty,  the  institution  becomes  rational, 
and  the  primary  law,  or  that  of  the  "antecedents"  of 
nature  of  the  Stoic  School,  interpenetrates  with  the 
"consequents,"  or  secondary  law,  and  receives  formality 


PATRIA  POTESTAS  715 

and  strength  from  the  latter.  In  this  duty  chiefly,  and 
also  in  the  sentiment  of  procreation  of  children,  must  be 
found  the  true  and  ultimate  foundation  of  patria  potestas. 
That  Rosmini's  conception  is  always  the  patria  potestas 
is  shown  by  his  expressed  subordination  of  the  seigneu- 
rial  right,  contained  therein,  to  the  right  of  control 
of  the  domestic  society.  The  seigneurial  right  is  an  im- 
mediate consequence  of  causality,  as  the  right  of  control 
owes  its  origin  to  the  parents'  love,  which  is  a  duty. 
The  expressions  which  he  sometimes  uses  could  give  rise 
to  ambiguity,  but  an  attentive  reading  of  the  pages  de- 
voted to  the  parental  relationship  will  destroy  all  doubt. 
Control,  lordship,  and  mediality  have  a  different  mean- 
ing, when  used  of  persons  and  things.  The  child  is 
subject  to  his  father's  control  and  lordship,  and  is 
medial,  as  far  as  a  person  can  be,  keeping  always  his  per- 
sonal dignity,  Rosmini  says.  The  father  is  the  cause 
of  his  children,  as  far  as  man  can  be  such  a  cause,  so  a 
son  can  be  called  the  effect  of  his  father.  Antiquity, 
he  says,  developed  in  the  child  such  an  extension  of  the 
existence  of  his  parents,  that  it  went  to  the  excess  of 
considering  the  son  as  the  property  of  the  father.  It 
seems  in  this  connection  that  modern  legislation  is  in- 
clined to  look  upon  the  father  as  merely  medial  to  the 
welfare  of  the  son. 

§  480.  Patria  Potestas  Governed  by  Essential  Reason. 
In  primitive  law  the  patria  potestas  was  born  from  the 
passive  obedience  of  the  children,  because  the  father  had 
strength  and  practical  sense.  In  India  religion  coun- 
selled the  faithful  to  study  twice  the  sacred  books,  to 
retire  from  active  life,  in  old  age  becoming  ascetics 
and  hermits.  This  never  meant  that  the  sons,  at  any 
time  or  against  their  father's  will,  could  demand  a 
division  of  the  estate.  Paternal  authority,  judging 
from  the  rules  of  Manu  and  Nerada,  has  always  been 


716         THE  PARENTAL  RELATIONSHIP 

absolute  among  the  Indians.  In  Sparta  the  lack  of 
patria  potestas  resulted  in  the  destruction  of  the  family. 
In  Athens  it  existed,  though  it  has  no  special  name,  allow- 
ing a  certain  guardianship  and  protection,  based  on  the 
presumption  of  the  intelligence  of  the  father,  according 
to  Socrates.  This  principle,  absolutely  enforced,  did 
not  insure  filial  piety  or  obedience,  because  the  son  was 
encouraged  to  measure  his  father's  intellect  with  his 
own,  and  in  such  a  struggle  he  may  find  his  own  superior- 
ity, and  feel  no  longer  bound  to  obedience.  In  Aris- 
totle's time  the  insufficiency  of  this  foundation  for  the 
patria  potestas  began  to  be  felt.  It  began  to  decay,  pre- 
paring the  way  for  the  dissolution  of  the  State.  In 
Rome  the  patria  potestas  was  extensive,  absorbing  the 
personalities  of  the  children.  It  approximated  owner- 
ship, "plena  potestas  in  re,"  and  was  limited  only  by  the 
magistracy  of  the  son,  or  by  a  war,  which  separated  the 
son  from  his  father.  The  patria  potestas  was  so  con- 
trolled by  the  Romans  as  to  oppose  its  rights  to  those 
of  the  State.  Through  this  almost  unlimited  power 
there  was  a  kingdom,  existing  within  a  free  republic, 
making  it  strong  and  vigorous.  Neither  was  domestic 
piety  lacking  in  the  family,  but  was  developed,  even 
where  paternal  authority  was  severe,  and  tempered  the 
latter's  vigor.  In  the  Middle  Ages  the  patria  potestas 
assumed,  as  a  result  of  barbaric  law,  that  character  of  a 
power  of  defense  and  guardianship,  appertaining  to  the 
"mundium,"  which  it  had  in  Athens.  With  the  preva- 
lence of  individualism,  the  institution  became  a  means  for 
individual  advantages.  It  is  not  a  cause  of  surprise, 
therefore,  that  the  father  came  to  be  looked  upon  as 
the  means  for  the  welfare  of  his  sons,  and  not  as  ulti- 
mate in  himself.  In  homage  to  personal  freedom  there 
was  an  effort  to  lessen  the  patria  potestas,  for  it  was 
thought  that  a  free  constitution  could  not  coexist  with 


PATRIA  POTESTAS  717 

a  family  founded  on  its  vigorous  authority,  forgetting  the 
example  of  Rome,  and  the  others  offered  by  Greece, 
where  the  decay  of  the  State  began  with  the  weakening 
of  family  ties  and  paternal  power.  In  our  age  the 
patria  potestas  has  lost  all  its  ancient  ferocity  and 
severity,  and  has  become  stronger  when  rationally 
exercised.  True  strength  lies  in  the  intellect,  Spinoza 
says;  the  senses  and  passions  are  weaknesses.  Pater- 
nal rights  are  not  placed  above  the  duties  of  taking 
thought,  instructing,  and  educating  the  young,  but  are 
made  subordinate,  and  founded  on  the  duty.  The 
ethical  relations  are  now  recognized  again  in  their  in- 
tegrity and  intimate  organic  connection.  But  the 
father  ceases  to  be  considered  as  medial  only,  and  is  ulti- 
mate. We  can  repeat  in  this  regard  what  has  been  said 
before  of  man  and  the  State  in  this  reciprocal  medial 
and  ultimate  relation.1 

§  481.  The  Mother  Enjoys  the  Patria  Potestas.  From 
what  has  been  said,  it  is  a  logical  inference  that 
the  patria  potestas  belongs  without  distinction  to  both 
parents,  because  both  are  bound  to  support,  instruct, 
and  educate  their  children.  It  certainly  cannot  be 
denied  the  mother,  who  takes  so  great  and  so  important 
a  part  in  the  up-bringing.  It  must,  however,  be  exer- 
cised during  coverture  by  the  father  in  order  to  give 
unity  to  the  family  through  the  gifts  and  powers  belong- 
ing to  man,  which  have  been  discussed  under  the  head 
of  marital  authority.  After  coverture  the  patria  potestas 
should  not  cease  nor  be  changed  to  guardianship  as 
under  the  French  Code,  but  should  be  exercised  by  the 
survivor  as  in  the  Italian  Code.  This  Italian  innovation 
conforms  perfectly  to  natural  law,  since  there  is  no 
reason  why  this  authority,  common  during  coverture, 
should  upon  the  death  of  either  consort  be  converted  into 

1  Cf.  §  173  ante. 


718         THE  PARENTAL  RELATIONSHIP 

a  guardianship.  The  law  in  that  hypothesis  would  dis- 
trust the  judgment  of  the  parents,  in  which,  as  far  as  the 
domestic  relations  are  concerned,  it  has  always  put  the 
greatest  confidence.  As  to  the  rights  of  the  patria 
potestas,  we  must  point  out  that  if  the  power  of  imprison- 
ing a  recalcitrant  son  is  no  longer  accorded  to  the  father, 
he  cannot  be  denied  the  power  of  driving  him  from 
the  house,  or  of  putting  him  in  a  house  of  correction. 
If  the  patria  potestas  be  strictly  enforced,  it  is  clear  that 
no  action  for  partition  of  the  estate  can  be  allowed  the 
children.  As  to  the  estate,  the  father  has  the  right 
of  administrating  the  estate  of  the  children,  because  of 
their  incapacity,  and  he  can  enjoy  the  income.  This 
interest  is  given  to  the  father  to  his  own  use,  and  is 
seigneurial  in  its  origin,  being  subordinate  to  the  admin- 
istrative power  of  the  domestic  society.  It  is,  therefore, 
subject  to  certain  conditions,  and  is  exercised  only  over 
certain  possessions.  The  patria  potestas  is  not  uncon- 
trolled ;  the  laws  have  methods  of  tempering  and  ending 
it,  if  the  parents  are  unworthy  through  some  grave  fault. 
§482.  Guardianship.  During  the  patria  potestas  there 
is  no  place  for  guardianship  as  an  institution  by  itself, 
since  the  latter  is  included  in  the  former.  But  the  patria 
potestas  can  come  to  an  end  while  there  are  still  per- 
sons in  the  family  who,  because  of  age,  have  need  of 
education,  support,  and  protection.  In  this  case  there 
must  be  a  guardianship  which  appears  as  a  substitute 
for  the  lost  paternal  power.  It  is  a  social  duty,  since 
everyone  must  aid  those  who  cannot  take  care  of 
themselves  or  their  property.  Guardianship  is  developed 
within  the  domestic  sphere,  and  enters  into  private 
law  in  that  aspect,  though  it  has  at  the  same  time 
both  a  public  and  social  element,  because  of  the  duty 
involved.  It  is  connected,  therefore,  with  the  function 
of  the  State  and  with  the  principles  of  public  law. 


GUARDIANSHIP  719 

This  public  character  of  guardianship  does  not  pre- 
suppose any  relationship  between  guardian  and  ward, 
nor  can  it  be  called  a  substitute  for  paternal  authority 
even  in  case  of  mental  weakness.  The  rights  of  the 
patria  potestas,  however,  are  always  included,  though 
in  a  restricted  manner,  in  guardianship,  whether  of  a 
minor  or  adult.  The  Roman  law  of  guardianship  was 
concerned  with  the  administration  of  the  estate;  modern 
law  tends  to  the  development  of  the  educational 
functions,  the  especial  property  of  the  patria  potestas, 
so  important  in  our  days,  in  which  a  good  education 
is  a  fruitful  asset.  From  this  premise  it  can  be  inferred 
that  guardianship,  in  its  ethical  character,  should  not  be 
confused  with  the  "negotiorum  gestio,"  because  on 
one  hand  guardianship  is  a  domestic  institution  and 
includes  to  a  certain  extent  the  rights  of  the  patria 
potestas,  and  on  the  other,  it  is  a  "munus  publicum." 
In  fact  the  agent  can  be  appointed  at  choice,  while  the 
guardian  is  appointed  by  the  father,  the  law,  a  magis- 
trate, or  a  family  council.  Testamentary  guardian- 
ship is  the  first  and  predominating  form,  for  the  father 
is  better  fitted  than  anyone  else  to  designate  his  successor 
in  the  education  of  his  son.  Upon  a  failure  to  appoint 
by  will,  the  law  can  with  due  regard  to  circumstance 
appoint  a  guardian  following  the  degrees  of  consanguinity 
in  which  it  always  places  confidence.  If  there  are  no 
relatives,  the  guardianship  is  donative,  that  is,  it  lies  in 
the  gift  of  the  court  or  family  or  guardianship  council. 
To-day  a  guardianship  can  be  decreed  because  of  mental 
weakness. 

§  483.  History  of  Guardianship.  In  Greece  guar- 
dianship was  testamentary  and  donative,  because  there 
was  not  enough  confidence  in  the  heir  presumptive 
of  the  ward  to  trust  him  as  guardian.  In  Rome  it 
began  by  being  testamentary,  became  agnative,  and 


720         THE  PARENTAL  RELATIONSHIP 

finally  donative.  Among  the  Germans  it  was  part  of 
the  "mundium,"  and  belonged  only  to  the  nearest  rela- 
tive. With  the  Lombards  the  guardian  had  to  have 
judicial  authorization  for  any  important  act.  The  judge 
had  to  call  together  the  family  in  many  cases,  for  ex- 
ample, in  the  alienation  of  realty.  Such  assemblies  were 
the  beginning  of  the  family  councils  presided  over  by  a 
magistrate. 

§  484.  The  Creation  of  a  Guardianship.  The  law 
of  guardianship  should  not  presume  the  fulness  of 
paternal  love  in  the  guardian,  nor  true  filial  devo- 
tion in  the  ward.  It  should  adopt  the  greatest  pre- 
cautions to  insure  the  guardian's  care  and  attention 
to  the  need  of  the  ward,  placing  great  confidence  in 
consanguinity.  If  the  deliberation  is  the  act  of  many, 
and  the  execution  the  act  of  one,  if  the  State  should 
watch  the  exercise  of  the  guardian's  authority,  it  is  a 
good  plan  to  entrust  the  deliberation  to  a  family  council 
presided  over  by  a  magistrate,  and  the  execution  to  the 
guardian.  This  surveillance  on  the  part  of  the  State 
can  be  exercised  by  a  magistrate  alone,  or  by  the  family 
council  presided  over  by  a  magistrate.  The  Italian 
Code  follows  the  second  plan.  A  guardian  differs  from 
a  trustee,  who  acts  for  emancipated  minors  or  spend- 
thrifts. The  trustee  has  control  of  the  estate  alone, 
while  the  guardian  is  invested  with  all  the  rights  of  the 
father  to  a  limited  extent.  We  must  note  that  the 
cestui  gue  trust  cannot  do  anything  without  the  inter- 
vention of  the  trustee.  Also,  according  to  the  Italian 
Code,  he  needs  for  certain  acts  the  authorization  by  the 
family  council,  and  for  others  the  sanction  of  the  court. 

§  485.  Adoption.  We  have  said  that  man  not  only 
wants  to  live  in  others,  but  wants  .to  relive  in  others.1 
The  first  want  is  satisfied  in  marriage,  the  second  in 

1  Cf.  §441  ante. 


ADOPTION  721 

generation.  A  couple  may  remain  childless,  and  some 
men  do  not  marry  because  of  sickness  or  from  reasons 
of  prudence.  The  childless  couple  are  unhappy  because 
they  do  not  relive  in  others;  those  who  abstain  from 
marriage  because  of  disease  or  prudence  are  doubly 
so,  since  they  neither  live  nor  relive  in  others.  The 
State  has  no  right  to  condemn  these  individuals  to 
solitude  and  unhappiness,  or  to  deny  them  civil  recog- 
nition of  spiritual  generation,  which  is  not  less  real 
than  the  corporeal,  and  is  a  result  of  philogamy. 
And  so  some  assume  willingly  the  care  of  supporting 
and  educating  children  who  have  been  abandoned 
or  left  to  their  care,  acquiring  in  time  sentiments  not 
unlike  those  of  true  paternity,  and  awaiting  in  return 
the  filial  devotion  of  these  children,  when  they  have 
grown.  Man  feels  that  in  the  family  relation,  and  in 
the  affections  which  are  based  on  it,  is  the  only  true 
happiness  that  is  given  him  to  enjoy,  and  when  they  fail 
him,  he  seeks  their  closest  substitute,  tired  of  the  lone- 
liness in  which  he  sees  himself  condemned  to  live.  Before 
legal  adoption,  there  was  de  facto  adoption  founded  on 
the  desires  of  human  nature.  "Adoptio  imitatur  natu- 
ram,"  taught  the  ancients,  "atque  in  eorum  solatio  in- 
venta  est,  qui  liberos  non  susceperunt,  aut  susceptos 
amiserunt."  From  another  point  of  view,  adoption 
helps  the  preservation  of  a  family  threatened  with 
dissolution.  It  has  its  motive  in  philogamy,  and  at 
the  same  time  perpetuates  the  ethical  and  organic 
unity  which  is  the  molecule  and  centre  of  the  highest 
and  larger  ethical  organism,  the  State.  In  history, 
the  more  the  family  has  appeared  as  an  organized 
and  powerful  nucleus  with  religious,  civil,  and  political 
characteristics,  the  more  has  the  need  for  adoption 
been  felt,  which  strengthens  this  nucleus  and  prevents 
its  dying  out. 


722         THE  PARENTAL  RELATIONSHIP 

§  486.  History  of  Adoption.  Adoption  is  in  accord 
with  the  constitution  and  principles  of  the  oldest  re- 
publics. We  may  note  that  adoption  is  based  upon 
the  relationship  of  the  parties  to  it,  and  when  the 
relationship  was  not  natural  it  must  have  been  civil. 
Adoption  at  that  time  could  not  have  been  entered 
into  with  the  object  of  comfort,  but  with  the  social 
and  political  object  of  the  preservation  of  the  family. 
In  fact  the  Roman  conception  of  "solatio  libero- 
rum  amisorum"  is  found  in  the  early  law  in  the  ex- 
ceptional cases  of  adoption  by  a  woman.  In  modern 
times,  since  the  family  is  still  a  unit,  the  need  of  adop- 
tion, though  less  strongly  felt,  still  exists.  The  unity 
is  not  as  strong  or  as  complex  as  is  the  Roman  family, 
but  it  exists  nevertheless,  and  cannot  fail  so  to  do,  since 
the  family  is  an  ethical  body.  The  difference  between 
the  two  unities  lies  in  the  former  being  in  the  interest 
of  the  father,  the  latter  in  the  interest  of  the  family 
itself.  This  understood,  it  is  clear  that  adoption,  which 
is  the  legal  act  by  which  there  is  established  a  relation  of 
paternity  and  filiation  between  two  strangers,  cannot 
be  considered  as  of  exclusive  private  import,  conclusive 
merely  of  the  personal  satisfaction  of  the  parties.  Adop- 
tion produces  a  change  of  status,  because  the  adopted 
child  becomes  the  child  of  the  adopters  and  acquires 
rights  of  inheritance  under  the  intestate  laws,  besides 
the  right  to  support  and  to  the  name  of  the  adopters. 
A  personal  status  is  not  within  the  scope  of  contract,  but 
of  law,  hence  the  reason  for  the  solemnity  of  adoption 
and  the  intervention  of  a  court.  An  adoption  is  always 
the  image  of  nature,  and  therefore  cannot  break  the  ties 
of  blood  relationship  between  the  child  and  his  family. 
Its  motive  lies  in  a  personal  sentiment,  though  conse- 
crated by  law,  and  from  this  it  follows  that  its  effect 
should  be  limited  to  adopter  and  adopted  and  should 


OPPOSITION  TO  ADOPTION  723 

not  extend  to  their  respective  families.  The  above 
breach  and  extension  have  no  part  in  the  true  and  genuine 
conception  of  adoption.  Adoption  is  advantageous  in 
hindering  tardy  marriages,  ordinarily  of  short  duration, 
and  seldom  happy. 

§  487.  Opposition  to  Adoption  not  Founded  on  Reason. 
Adoption  has  met  not  a  little  opposition,  especially  in 
France,  where  it  had  no  traditions.  The  French  juris- 
consults, followed  in  Italy  by  Pisanelli,  state  that  nature 
alone  can  create  the  relation  of  paternity  and  filiation, 
and  that  law  cannot  destroy  the  sacred  affection  derived 
from  ties  of  blood.  But  they  do  not  reflect  that  adoption 
is  not  introduced  to  destroy  natural  ties,  or  to  give  the 
artificial  relation  greater  effects  than  the  natural.  They 
do  not  remember  that  it  is  only  the  image  and  cannot 
have  the  appeal  of  the  true  family,  whose  interest  it  can- 
not prejudice,  since  it  cannot  exist  if  there  are  legitimate 
children.  It  only  prejudices  collaterals  and  relatives, 
who  would  inherit  upon  failure-  of  closer  heirs,  but  it  is 
not  just  to  sacrifice  the  individual's  freedom  and  happi- 
ness to  these  ties,  which  do  not  belong  to  the  family  in 
the  strict  sense.  The  enemies  of  adoption  go  further,  say- 
ing that  it  is  a  useless  institution  since  there  is  such  tes- 
tamentary freedom  allowed,  that  the  beneficence  can  be 
shown  by  a  legacy  without  need  of  introducing  any  arti- 
ficial relations.  These  have  not  thought  that  ordinary 
benevolence  is  not  the  motive  of  adoption  but  benevo- 
lence which  is  part  of  philogamy  and  assumes  the  forms 
of  paternal  and  filial  devotion.  Furthermore,  adoption 
should  not  be  considered  only  in  its  relation  to  the  individ- 
uals, whose  comfort  it  is,  but  in  relation  to  the  family 
which  it  tends  to  preserve.  Nor  have  they  showed  that 
adoption  is  a  feudal  institution,  for  it  flourished  under 
primitive  law,  in  India,  Greece,  and  Rome.  It  is  not  essen- 
tially feudal,  because  the  grant  of  titles  and  arms  did  not 


724          THE  PARENTAL  RELATIONSHIP 

depend  upon  the  will  of  the  individual.  Adoption,  it  is 
at  last  argued,  is  employed  to  avoid  the  legal  prohibition 
of  the  recognition  of  hidden  filiation.  But  does  not  the 
court  supervise  an  adoption,  seeing  that  it  does  not  cloak 
a  crime?  The  Italian  lawyer,  Vigliani,  argued  that 
point  in  the  Senate ;  "Either  the  paternity  of  the  adopter 
will  be  known  or  suspected,  and  the  court  will  refuse  the 
petition  for  adoption,  or  will  be  unknown  and  hidden,  and 
the  adoption  will  take  place,  and  it  does  not  seem  just  to 
complain  that  an  unfortunate  child,  deprived  of  help  and 
family,  should  find  both  in  adoption  without  scandal  to 
society,  ignorant  of  the  hidden  ties  of  nature  which  bind 
him  to  the  adopter." 

§  488.  The  Status  of  Illegitimate  Children.  Law, 
being  an  ethical  principle,  should  not  encourge  illicit 
unions.  It  should,  however,  protect  children  born  out 
of  matrimony  from  the  acts  of  the  parents,  in  whom 
often  love  is  lacking,  or  is  smothered  by  the  interest  of 
their  legitimate  families  or  by  conventionality.  It 
should  visit  all  the  consequences  of  the  fault  upon  its 
authors,  and  not  extend  it  to  others.  Law  cannot 
make  the  condition  of  children  born  out  of  matrimony 
equal  to  that  of  legitimates,  because  it  must  guard  the 
morality  and  order  of  family  life.  Children  born  out  of 
matrimony  can  be  either  natural,  adulterous,  or 
incestuous.  The  last  two  are  sprung  ex  nefario  coitu, 
from  criminal  unions.  But  should  the  crime  and  tort 
of  their  parents  subject  them  to  the  payment  of  dam- 
ages and  penalties,  and  mark  them  from  innocent  child- 
ren? The  disgrace  and  loss  of  certain  rights  under  the 
civil  law  belong,  Rosmini  states,  to  that  age  of  the 
world  in  which  the  individual  principle  was  involved 
in  general  nature,  and  operative  only  therein,  the  stock 
was  punished  for  the  acts  of  the  individual.  Now  that 
age  has  passed.  Through  the  New  Testament,  human 


ILLEGITIMATE  CHILDREN  725 

nature  has  been  awakened  and  fully  developed.  Public 
opinion  has  changed.  Now  law  should  punish  severely 
the  fault  of  the  parents, —  with  penalties,  however, 
which  affect  them  alone,  protects  the  innocent  victims, 
and  declares  them  clear  of  all  infamy  and  free  from  all 
consequent  harm.  Justice  demands  that  adulterous 
and  incestuous  children  should  be  considered  in  the  same 
manner  as  natural  children  (as  the  Austrian  Code  de- 
crees) and  should  not  have  only  pietatis  gratia,  neces- 
saries. Adulterous  and  incestuous  children  also  have 
rights  to  upbringing,  instruction,  and  support  by  their 
parents,  whose  legal  responsibility,  like  the  patria  potes- 
tas,  should  be  extended  over  them.  The  law  can  allow 
the  recognition  of  these  classes  of  children  without  fear 
of  more  scandalous  suits  than  are  possible  to-day  in  actions 
for  the  disinheritance  of  children,  and  for  the  annulment 
of  the  bonds  of  matrimony  for  incest.  Through  their  rec- 
ognition adultery  and  incest  will  be  discovered,  and 
justice  will  therefore  be  rendered  capable  of  punishing 
its  violators,  the  victim  will  have  a  money  indemnity, 
and  individual  responsibility  will  be  increased,  making 
criminal  unions  much  fewer.  Neither  can  a  limited  right 
of  inheritance  be  denied  such  offspring  for  the  same 
reason  that  they  must  be  given  rights  (which  are  in  Italy 
actully  given  to  natural  children),  that  is,  because  of  their 
innocence,  and  because  "factum  cuique  suum  nocere 
debet."  But  though  the  rights  of  adulterous  and  inces- 
tuous children  should  be  the  same  as  those  of  natural 
children,  the  rights  of  illegitimates  cannot  be  made 
equal  to  those  of  legitimates,  because  the  scope  of 
personal  integrity  lies  wholly  within  matrimony,  since 
all  reproduction  and  educational  functions  belong  to 
the  true  family,  as  ordered  by  the  State,  in  accordance 
with  the  dictates  of  natural  law  and  the  conditions  of 
civilization.  We  must  harmonize  the  sacred  rights 


726         THE  PARENTAL  RELATIONSHIP 

to  life,  and  the  obligations  of  parentage,  with  the 
demands  of  the  whole,  or  society.  In  history,  when 
marriage  was  regulated  rather  by  custom  than  by  stat- 
utes, and  everything  was  controlled  by  the  head  of 
the  family,  there  was  but  little  difference  made  between 
legitimates  and  illegitimates.  Examples  of  this  are  the 
heroic  times  among  the  Greeks,  and  the  patriarchal  times 
with  the  Hebrews.  The  Greek  law,  subsequent  to  the 
heroic  ages,  treated  illegitimates  with  severity.  This 
severity  continued  until  Pericles,  who  had  no  legitimate 
offspring,  made  his  natural  son  legitimate.  In  Rome 
concubinage  was  recognized,  owing  to  the  disparity  of 
conditions.  Children  thus  born  had  the  right  of  pretor- 
ian  inheritance  from  the  mother  and  her  family,  but  from 
the  father  could  obtain  only  necessaries.  In  the  day  of 
the  Empire  they  were  considered  as  natural  children  of  the 
father,  who  was  given  the  patria  potestas,  and  who  could 
legitimize  them,  without  having  the  power  of  making 
any  will  in  their  favor,  a  power  given  over  a  portion  of 
the  estate  by  Valentinus.  Justinian  admitted  them  to  the 
inheritance  if  the  father  died  intestate,  or  upon  failure 
of  wife  and  children,  if  he  had  left  them  nothing.  In  all 
cases  the  natural  children  had  a  right  to  necessaries. 
According  to  Justinian,  however,  children  ex  nefario 
coitu  had  not  even  this  right,  while  in  the  time  of  Gaius 
they  were  recognized  as  cognates,  and  enumerated  among 
the  "vulgo  qusesiti,"  admitted  to  pretorian  inheritance. 
The  children  exdamnato  coitu  had  no  right  of  action  against 
their  father,  but  the  relation  could  be  proved  to  stop  or 
declare  an  incestuous  marriage,  or  to  annul  a  legacy  in 
their  favor.  Finally,  concubinage  was  forbidden  by 
canon  law.  There  immediately  arose,  on  one  hand,  mor- 
ganatic marriages,  contracted  by  persons  of  unequal  con- 
ditions, giving  a  right  of  inheritance  to  a  portion  of  the 
estate,  set  apart  at  the  time  of  the  marriage,  and  on  the 


INQUIRY  INTO  PATERNITY  727 

other  hand,  the  marriage  of  conscience,  secretly  cele- 
brated, and  not  producing  special  or  definite  legal  effects. 
Concubinage  continued  too,  despite  the  prohibition,  but 
the  illegitimates  (though  they  sometimes  ascended 
thrones)  were  considered  incapable  of  inheritance  or  of 
ecclesiastical  preferment,  and  were  the  subjects  of  the 
right  of  necessaries  only.  Their  estates  upon  their 
death  belonged  to  the  lord  or  the  State.  Only  after  a 
long  period  were  they  given  the  power  to  will.  The 
French  Revolution  championed  the  rights  of  all  to  par- 
take equally  in  the  inheritance  except  adulterous  chil- 
dren. The  Code  gave  the  natural  children  a  right  of 
inheritance  of  a  smaller  portion  than  the  legitimate, 
but  gave  the  offspring  of  adultery  and  incest  the  right 
to  necessaries  alone,  dividing  them  into  natural  chil- 
dren recognizable  and  natural  children  non-recognizable. 
§  489.  Inquiry  into  Paternity.  If  the  laws  assigned 
a  certain  position  in  the  family  to  illegitimates,  they 
should  not  be  deprived  of  the  means  of  finding  their 
father  and  claiming  that  position.  Some  codes,  like  the 
French  and  Italian,  recognize  the  right  to  prove  ma- 
ternity, but  forbid  the  inquiry  into  the  paternity, 
though  the  French  Code  allows  the  latter  in  cases  of 
rape,  and  the  Italian  in  cases  of  rape  by  force,  if  the 
act  coincides  with  the  time  of  conception.  It  is  evident 
that  the  codes  are  unjust,  because  they  protect  the 
monstrous  privilege  of  the  seducer,  who  escapes  all 
responsibility  for  his  acts,  leaving  the  unsophisticated 
and  well  meaning  girl  to  face  great  trouble,  and  wreaking 
the  effect  of  his  brutal  selfishness  upon  an  innocent 
creature.  The  inquiry  into  the  paternity  would  not  be 
an  innovation.  It  has  the  evidence  of  history  in  its 
favor  because,  allowed  by  the  Roman,  it  was  retained  by 
the  German  and  canon  laws,  and  flourished  until  the  end 
of  the  XVI  Ith  Century,  here  surrounded  by  precaution 


728         THE  PARENTAL  RELATIONSHIP 

and  guards,  here  without  them,  to  the  ease  and  frequency 
of  scandalous  abuse.  In  France  this  abuse  was  possible, 
and  the  honor  of  respectable  men  and  the  peace  of  the 
family  was  often  in  the  power  of  a  cunning  harlot,  helped 
by  bribed  witnesses  and  blackguards.  When  the  right 
of  action  was  done  away  with  in  France,  because  of  the 
continual  injustice  which  it  permitted,  the  civil  law  was 
divided  into  two  classes,  one  of  which  followed  the  old 
law,  and  one  the  French.  In  the  nations  which  fol- 
lowed the  French  law,  and  especially  in  France  itself, 
through  the  study  of  comparative  legislation,  there 
arose  a  doubt  of  the  intrinsic  justice  of  the  prohibition, 
and  subsequently  a  reaction  against  it.  The  prohibition 
of  the  inquiry  into  paternity  was  regarded  as  an  obvious 
and  unreasoning  form  of  the  supremacy  of  the  male, 
who  is  stronger  than  the  female.  It  was  noted  that 
there  was  no  need  to  regard  the  forced  recognition  of  the 
fruits  of  seduction  or  a  passing  intimacy  as  an  offense 
against  morality,  if  the  law  recognizes  a  spontaneous 
recognition,  and  admits  the  children  of  a  mistress  to 
intestate  inheritance.  The  ending  of  the  brutal  privi- 
lege and  the  awakening  of  feeling  of  responsibility  might 
exercise  an  effective  restraint.  This  is  the  opinion  of 
several  philosophers  of  the  law,  for  example,  Ahrens 
and  Trendelenburg.  Rosmini  criticizes  the  plan,  because 
in  illicit  unions  the  mother  can  always  be  found,  while 
often  the  father  cannot.  The  father  is  often  not  found, 
he  says;  but  why  exclude  him  from  punishment  the  times 
that  he  is?  We  can  find  many  imperfections  in  the 
statutes  due  Lo  the  poor  development  of  the  power  of 
abstraction.  At  first,  legislation  was  content  with  rea- 
soning on  principle,  which  was  sometimes  right  but 
not  always.  In  those  cases  in  which  the  principle  failed, 
natural  law  suffered  from  their  decrees,  as  in  the  case 
for  which  there  was  no  statute,  or  where  a  statute  was 


PROOF  OF  PATERNITY  729 

violated.  On  this  score,  therefore,  the  perfection  of  the 
law  lies  in  acting  upon  the  general  principle,  which  gov- 
erns the  majority  of  cases,  and  upon  other  principles  and 
special  rules,  which  one  by  one  embrace  the  refractory 
cases,  and  cover  the  whole  field  of  rational  law.  The 
marriage  ceremony,  to  quote  Rosmini,  cannot  be  con- 
sidered as  the  only  proof  of  paternity ;  there  are  others. 
All  are  sometimes  inefficient.  A  wedding  establishes 
rather  a  legal  presumption  than  a  logical  proof.  It  is 
not,  therefore,  a  source  of  wonder  that  the  presumption 
should  yield  to  the  truth  of  the  fact  of  the  illegitimacy  of 
the  son,  otherwise  proved.  And  if  it  is  right  to  give 
the  adulterous  and  incestuous  children  the  same  rights 
as  the  natural,  it  follows  that  the  first  can  be  recognized 
and  legitimized,  and  that  they  too  can  inquire  into  the 
identity  of  their  father,  if  such  search  be  reasonably 
conducted. 

§  490.  Proof  of  Paternity.  There  are  two  methods 
by  which  the  paternity  of  a  child  born  out  of  wed- 
lock can  be  determined,  —  by  the  belief  of  the  father, 
and  by  circumstantial  evidence.  The  father's  belief 
can  be  enforced  by  proof  of  his  written  statement, 
proved  by  witnesses,  or  by  other  evidence  about  his 
relations  with  the  mother,  and  should  not  be  restricted 
to  a  formal  recognition.  In  countries  where  the  pri- 
ority of  civil  marriage  is  not  required,  the  religious 
ceremony  supplies  such  proof,  and  is  always  considered 
by  the  State  as  a  formal  recognition.  It  is  clearly  an 
implied  recognition  if  the  son  is  called,  and  treated,  and 
generally  reputed  to  be  the  son.  The  proof  of  paternity 
from  circumstantial  evidence  now  allowed  in  case  of 
rape,  should  be  extended  to  other  cases  in  which  there 
are  sufficient  motives  to  admit  it.  The  "custodia 
ventris,"  for  example,  consisting  in  cohabitation  "more 
uxorio,"  in  the  watching  of  the  man  over  the  woman 


730         THE  PARENTAL  RELATIONSHIP 

in  the  period  of  conception,  joined  with  the  honorable 
behavior  of  the  woman  herself,  the  simple  seduction  of 
a  young  girl,  and  the  seduction  of  an  honest  woman  of 
any  age  through  false  promises  of  marriage,  should  be  con- 
sidered the  principal  prerequisites  for  inquiry  into  the 
paternity.  Justice  demands  it,  and  the  proof  is  possible 
and  not  always  difficult.  It  must  be  remembered  that 
only  the  girl  who  has  been  seduced,  not  the  woman 
of  many  affairs,  can  be  allowed  to  testify.  The  abuse  of 
proof  was  possible  when  the  sworn  statement  of  the 
pregnant  woman,  the  victim  of  seduction,  was  enough 
by  itself.  The  possibility  was  lessened  when  the  other 
requirement  of  lack  of  customary  intimate  relations  was 
added,  and  was  not  much  to  be  feared  when  a  writing 
by  the  father  was  necessary,  as  the  Convention  decreed. 
§  491.  Legitimation.  The  law  should  also  provide 
that  what  is  not  originally  moral  may  become  so. 
And  therefore  it  should  allow,  as  a  reparation  of  an 
injustice,  legitimation  by  subsequent  marriage,  or  by 
decree  in  cases  in  which  the  subsequent  marriage  is 
not  possible.  It  follows,  of  course,  that  the  legitimated 
son  has  the  same  rights  as  the  legitimates.  This 
principle,  and  that  of  responsibility,  is  connected  with 
the  existence  of  receptacles1  for  abandoned  children, 
which  is  the  end  of  the  civil  estate  of  thousands 
and  thousands  of  men,  and  which  increases  the  number 
of  abandoned  children,  and  is  the  infamous  cause  of 
the  abandonment  of  legitimates,  especially  in  large  cities. 
These  receptacles  are  a  worn-out  form  of  blind  and  irra- 
tional charity,  and  are  closed  in  most  civilized  countries, 
giving  way  to  various  maternity  hospitals  which  take  chil- 
dren at  their  birth.  Such  institutions  have  the  merit  of 

1  These  receptacles  are  placed  in  public  places  in  the  cathedrals  of 
Southern  Europe.  In  them  a  child  can  be  placed,  who  is  supported  by  the 
money  placed  in  the  receptacle  by  charitable  persons.  They  are 
described  by  Victor  Hugo  in  "Notre  Dame  de  Paris." 


LEGITIMATION  731 

preventing  the  abandonment  of  legitimate  children,  and 
often  provide  for  the  future  life  of  the  disgraced  infant. 
Some  laws  permit  the  parents  to  remain  unknown; 
others  declare  that  the  mothers  must  give  their  name. 
Without  doubt  the  latter,  based  upon  the  principle 
of  responsibility,  conforms  better  to  rational  law. 
The  first  do  not  enforce  vigorous  justice,  because  they 
fear  infanticide.  In  fact,  the  fear  is  not  unfounded, 
since  it  is  a  question  of  saving  one's  honor  and  of  avoid- 
ing disastrous  consequences.  But  on  this  subject,  as  on 
every  other,  much  depends  on  the  morals  and  customs 
of  the  people.  The  fear  is  baseless,  however,  as  far  as  the 
closing  of  the  receptacles  is  concerned,  since  it  has  been 
seen  that  there  is  more  infanticide  where  the  receptacles 
are  in  use  than  where  they  are  not.  This  does  not  mean 
that  the  presence  or  absence  of  the  receptacles  is  an  effec- 
tive cause  of  the  increase  or  decrease  of  this  kind  of  crime. 
Experience  shows  that  infanticide  generally  is  committed 
before  the  mother  feels  the  emotions  of  maternity,  and 
also  where  there  is  no  one  whom  she  trusts,  to  whom  she 
can  temporarily  give  the  fruit  of  her  dishonor.  If  the 
emotions  are  felt,  if  the  confidant  is  there,  the  baby  is 
saved,  and  it  little  matters  whether  it  is  the  receptacle 
or  the  charity,  provided  the  mother  need  not  give  her 
name  at  the  birth.  The  receptacle  should  be  placed  by 
the  bedside  to  avoid  infanticide. 


732  INHERITANCE 


CHAPTER  XXI 

DEFINITION,  HISTORY,  AND  BASIS  OF 
INHERITANCE 

THE  CONCEPTION  OF  HEREDITY.  —  INTESTACY  AND  TESTACY 
IN  HISTORY.  —  INHERITANCE  AND  ANCESTOR  WORSHIP.  —  DOC- 
TRINES AS  TO  THE  BASIS  OF  INHERITANCE. —  DOMESTIC  CO- 
OWNERSHIP  AND  THE  RIGHT  OF  PROPERTY,  AS  BASES  FOR 
INHERITANCE. 

§  492.  Law  of  Inheritance  Affects  all  Relations  of  Life. 
Death  extinguishes  man  and  many  of  his  relations,  but 
his  goods,  rights,  and  obligations  continue  to  exist  and 
form  that  "nomen"  or  "universitas  juris"  which  is  called 
his  estate.  "Hereditas,"  says  the  early  Roman  law,  "nihil 
aliud  est  quam  successio  in  universum  jus  quod  defunc- 
tus  'habuit."  The  "heres"  is  placed  in  the  position  of 
the  "herus"  and  represents  his  personality,  becoming  the 
new  subject  of  the  rights  which  are  the  "universum 
jus  defuncti."  He  is  the  successor  with  full  title  and 
is  held  bound  to  pay  the  debts  of  the  decedent  and 
bear  the  burdens  of  inheritance,  differing  from  the 
successor  under  a  particular  or  testamentary  title,  who 
does  not  represent  the  personality  of  the  deceased 
and  inherits  only  what  is  left  to  him  and  must  bear 
only  the  burdens  inherent  therein  or  those  imposed 
by  the  testator.  Now  inheritance,  on  one  hand,  is  con- 
nected with  the  family,  because  it  appears  when  that 
is  decomposed  into  its  elements  or  another  family;  on 
the  other  hand,  it  is  connected  with  property,  since  it 
effects  a  transfer  of  the  estate.  The  law  of  inheritance, 


AMONG  THE  OLD  NATIONS  733 

therefore,  logically  presupposes  the  parental  and  conju- 
gal relations  and  domestic  and  matrimonial  law.  It  can 
be  considered  as  the  last  phase  of  family  law  and  even  of 
private  law,  since  the  private  relations  have  their  end  in 
individual  and  domestic  life.  The  foundations  of  this 
kind  of  law  lie  in  the  family  community  and  the.free  will 
of  the  owner.  If  all  the  law  of  heredity  were  based  on  the 
family,  the  individual  could  be  entirely  absorbed  by  the 
collective  entity  and  would  lose  his  personality ;  no  form  of 
inheritance  save  the  statutory  and  unalterable  would  be 
recognized.  If,  however,  it  were  based  entirely  upon  the 
will  of  the  disposing  individual,  the  family  would  be  de- 
nied ,  and  the  individual  would  have  an  untrammelled  right 
to  decide  upon  his  own  duties.  In  this  case  there  would 
be  no  laws  of  intestacy,  and  testamentary  inheritance 
would  cover  everything.  The  law  of  inheritance  should, 
therefore,  harmonize  the  rights  of  the  family  with  the 
just  claims  of  the  individual,  without  forgetting  that  the 
right  of  succession,  being  directly  referable  to  the  family 
touches  the  "seminarium  republicse,"  and  therefore  is  of 
great  interest  to  the  State. 

§  493.  Inheritance  Among  the  Older  Nations.  In 
primitive  times  the  right  of  the  community  prevailed, 
and  not  that  of  the  part  or  individual.  In  such 
times  intestate  succession,  which  represented  the  ab- 
sorbing right  of  the  family,  was  the  only  and  prevalent 
right,  and  not  testacy,  which  is  the  act  of  an  individual. 
Traces  of  true  testacy  are  not  found  in  the  Book  of  Gen- 
esis although  the  patriarchs  had  a  certain  right  of  confer- 
ring their  goods  in  case  of  death.  In  Athens  there  was 
an  institution  of  appointing  an  heir,  in  the  form  of 
an  adoption,  provided  there  were  no  children.  This 
shows  that  at  first  only  children  could  inherit.  In  the 
earlier  days  there  was  no  power  of  will  among  the  Spar- 
tans, but  it  was  introduced  by  the  laws  of  Epithadeus. 


734  INHERITANCE 

Neither  did  it  exist  among  the  Germans,  nor  does  it  to-day 
among  the  tribes  and  people  who  are  in  the  condition 
of  the  ancient  Germans.  In  Rome  inheritance  was  first 
regulated  exclusively  by  statute,  which  considered  the 
"sui,"  then  the  "agnati,"  and  later  the  "gentiles."  The 
earlier  and  solemn  form  of  the  "testamentum  calatis  com- 
itiis"  was  a  law,  and  needed  the  consent  or  sanction  of 
the  people.  The  first  manner  of  making  a  will,  perhaps 
because  it  was  the  first,  could  not  be  availed  of  independ- 
ently of  the  "lex,"  and  could  not  be  free  from  customary 
forms.  Testacy  is  not  a  primitive  fact,  but  neither  is 
it  an  institution  of  mere  civil  or  positive  law ,  as  we  will  see. 
Not  all  that  is  of  latter  development,  however,  is  artificial ; 
it  is  true  that  the  nature  of  things  is  nothing  but  their 
birth,  but  this  understood  in  its  fullness  includes  genetic 
development  or  evolution.  Human  nature  consists  more 
in  the  fieri  than  in  the  esse,  whence  it  follows  that  the 
natural  is  not  that  alone  which  develops  first.  And  fur- 
thermore, it  can  be  noted  that  what  is  natural,  rational, 
and  universal  at  the  beginning  seems  to  be  introduced  by 
art  and  appears  as  a  simple  particular  fact.  It  is  only 
later  that  it  comes  to  be  recognized  in  its  true  char- 
acter, when  the  mind  is  fully  developed,  as  the  great 
Neapolitan  philosopher  said.  A  will,  properly  so  called, 
was  a  Roman  invention.  In  Rome  the  freedom  of 
the  testator  was  untrammelled,  as  can  be  seen  from 
the  laws  of  the  Twelve  Tables,  in  which  it  is  written, 
"Pater  familias  uti  legassit  super  pecunia  tutelave  rei 
suse,  ita  jus  esto."  It  must  not  be  supposed,  however, 
that  the  power  of  willing  in  Rome  was  a  method  of 
disposing  in  favor  of  strangers.  It  was  simply  a  means 
by  which  that  complexity  of  rights  included  in  the 
patria  potestas  passed  from  one  individual  to  another. 
The  inheritance  was  always  "universitas  juris,"  and  in- 
cluded the  "sacra"  and  domestic  ceremonies.  This  was 


FORMS  OF  ROMAN  WILLS  735 

true  not  only  in  Rome  but  also  in  Athens,  when  the  power 
to  will  began  there,  and  in  Bengal.  Neither  can  it  be  said 
that  the  will  in  Rome  was  a  method  of  creating  inequal 
ities,  because  it  served  equitable  purposes  and  was  a  cor- 
rective of  the  law  which  excluded  from  the  inheritance 
the  natural  children  and  those  who  had  been  emanci- 
pated. Great,  there  fore,  was  the  horror  of  the  Romans  of 
dying  intestate.  The  real  inequality  arose  with  feudal 
law  which  recognized  primogeniture.  A  feud  once  hav- 
ing become  hereditary,  the  overlord  had  an  interest  in 
keeping  a  single  son  responsible  for  military  service. 
Wherever,  says  Maine,  the  patriarchal  power  became 
political  there  arose  the  right  of  primogeniture  which  is 
of  two  kinds.  In  India  and  western  Europe,  primogeni- 
ture is  the  passing  from  father  to  son,  while  with  the 
Celts  upon  the  death  of  the  first  son  the  second  takes  his 
place,  excluding  the  sons  of  the  first  because  of  the 
desire  to  have  a  mature  man  as  the  head  of  the  house. 
§  494.  Forms  of  Roman  Wills.  The  first  form  of 
Roman  will  was  that  "calatis  commitiis."  It  is  a 
question  whether  the  people  intervened  in  the  Commi- 
tia  to  convert  the  will  of  the  testator  into  a  statute,  or 
acted  merely  as  witnesses.  But  it  seems  probable  that 
at  the  time  when  the  transformation  from  intestacy  to 
testacy  was  taking  place  the  people  had  to  make  the  dis- 
position of  the  testator  a  law  and  that  later  they  merely 
acted  as  witnesses.  The  second  form  was  "per  ses  et  lib- 
ram"  to  which  recourse  was  had  when  one  could  not  make 
a  will  in  the  solemn  manner.  It  existed  at  the  same  time 
as  the  will  "calatis  commitiis."  The  "emptor  familiae" 
was  not  an  heir-at-law  but  was  "loco  heredis"  and  took 
the  estate  without  the  debts,  for  which  reason  some 
people  have  likened  him  to  the  adopted  son  under  the 
laws  of  arrogation.  The  will  "per  aes  et  libram"  con- 
sisted, when  coexisting  with  the  "calatis  commitiis,"  as 


736  INHERITANCE 

a  method  of  necessity.  It  was  divided  into  two  parts, 
the  "mancipatio"  and  the  "rogatio."  The  "mancipatio" 
transferred  the  property,  and  the  "rogatio"  gave  the 
title  of  trustee  to  the  "emptor  familiae"  of  particular 
legacies.  Gaius  says:  "Acessit  deinde  tertium  genus 
testamenti,  quod  per  aes  et  librarri  agitur,  qui  enim 
neque  calatis  commitiis  neque  in  procinctu  testamentum 
fecerat  si  subita  morte  urgebatur  amico  f amiliam  suam  id 
est  patrimonium  suum  mancipio  dabat  eumque  rogabat, 
quid  cuique  post  mortem  suam  dari  vellet."  Then  the 
testament  "per  aes  et  libram"  ceased  being  supple- 
mentary and  became  the  ordinary  form.  The  "manci- 
patio" was  considered  a  formality,  not  productive  of  the 
transference  of  ownership  in  favor  of  the  "emptor  fami- 
liae," who  was  no  longer  "in  loco  heredis."  When  the 
"mancipatio"  took  on  this  form  the  testator  could 
revoke  it.  Gaius  says:  "Sed  ilia  quidem  duo  genere 
testamentorumindesuetudinem  abierunt ;  hoc  vero  solum 
quod  per  aes  et  libram  fit  in  usu  retentum  est  sane  nunc 
aliter  ordinatur  atque  olim  solebat;  namque  olim  fami- 
liae emptor,  id  est  qui  a  testatore  familiam  accipiebat 
mancipio  heredis  locum  obtinebat;  et  ob  ei  mandabat 
testator,  quid  cuique  post  mortem  suam  dari  vellet; 
nunc  vero  alius  heres  testamento  institutur,  a  quo  etiam 
legata  relinquuntur,  alius  dicis  gratia  propter  veteris 
juris  imitationem  familiae  emptor  adhibetur."  The 
"nuncupatio,"  the  other  part  of  the  will,  consists  in  the 
declaration  before  witnesses  that  the  writing  contained 
the  last  dispositions.  Ulpian  states:  "In  testamento, 
quod  per  aes  et  libram  fit,  duae  res  aguntur,  familiae 
mancipatio  et  nuncupatio  testamenti.  Nuncupatur 
testamentum  in  hunc  modum,  tabulas  testamenti  testa- 
tor tenens  itadicit:  Haec  uti  his  tabulis  cerisve  scripta 
sunt  ita  do,  ita  lego,  ita  teslor,  itaque  vos,  quirites,  tesit- 
monium  praebitote;  quae  nuncupatio  et  testatio  voca- 


HISTORY  OF  WILLS  737 

tur."  It  seems  that  the  second  phase  of  mancipatory 
will  was  determined  by  reasons  of  utility,  as,  for  example, 
the  need  of  creating  several  heirs  at  the  same  time,  or 
of  creating  them  conditionally.  The  third  form  of  will 
was  the  pretorian.  The  pretorian  will  was  written 
because  it  was  fundamentally  only  the  will  "per  aes  et 
libram"  without  the  formality  of  the  "mancipatio"  and 
"nuncupatio."  Cicero,  Gaius,  and  Ulpian  speak  of  the 
pretorian  will,  "septem  signis  testium  signatum,"  or  of 
"tabulas  quae  septem  testium  signis  signatas  sunt." 
Some  fragments  emphasize  the  "bonorum  possessio 
secundum  nuncupationem,"  and  from  this  it  can  be 
seen  that  the  will  proper  could  sometimes  be  nuncupative. 
§  495.  History  of  Wills  in  the  Middle  Ages.  We 
have  said  that  there  was  no  form  of  will  among  the 
Germans.  The  right  of  relationship  and  the  active  and 
passive  solidity  of  the  connotation  of  the  family  were 
absolute.  Tacitus  writes  of  them:  "Heredes,  succes- 
soresque  sui  cuique  liberi,  et  nullum  testamentum.  Si 
liberi  non  sunt,  proximus  gradus  in  successione,  frates, 
patrui  avunculi."  The  inheritance  contracts  or  bilat- 
eral and  irrevocable  disposition  which  bound  one  or 
both  of  the  parties  in  the  acquisition  or  loss  of  rights 
of  inheritance  were  admitted  by  the  German  laws  and 
prepared  the  way  for  testacy.  Such  agreements  were 
prohibited  by  Roman  law  because  they  affected  the 
revocability  of  the  will  and  because  the  spectacle  of 
a  contractual  heir  who  looks  with  avid  eye  upon  the 
estate  of  him  who  is  still  alive,  and  who  wastes  loving 
care  upon  his  future  successor  certain  of  the  estate, 
is  not  moral.  It  is  clear  that  the  introduction  of 
hereditary  agreements  makes  the  will  possible,  being  in 
contradiction  to  that  absolute  predominance  of  family 
rights  which  existed  at  the  beginning.  The  irrevocability 
of  such  dispositions  remaining  always  intact,  at  first 


738  INHERITANCE 

property  and  possession  were  transmitted,  afterwards 
property  alone  and  not  possession,  and  finally  the  trans- 
mission of  both  was  postponed  until  the  death  of  the 
owner.  The  growing  influence  of  the  Roman  idea  over 
the  clergy  and  a  recognition  of  bequests  for  the  good  of 
the  soul  and  of  donations  pia  causa,  which  approached 
nearer  and  nearer  to  a  will,  hastened  its  reappearance 
in  the  Middle  Ages.  The  Church  was  interested  in 
holding  as  valid  dispositions  in  its  favor  which  did  not 
wholly  conform  to  civil  law  because  unaccompanied  by 
all  the  formality  and  prescribed  conditions.  It  concerned 
itself  only  with  the  certainty  of  the  will  of  the  testator; 
in  this  canon  law  approximated  natural  law.  Now  from 
these  notes  on  the  history  of  inheritance  it  can  be  seen 
that  the  right  was  not  born  like  the  Minerva  from  the 
head  of  Jove,  because  at  the  first  it  was  public,  oral, 
and  irrevocable,  later  it  became  secret,  written,  and 
revocable.  Perfection  is  always  found  in  development 
and  not  in  the  initial  form. 

§  496.  Testacy  and  Ancestor  Worship,  The  historical 
development  of  succession  is  connected  also  with  the 
evolution  of  property  and  of  the  family,  which  we 
have  mentioned  before.1  Here  we  may  notice  the 
connection  between  inheritance  and  ancestor-worship 
in  primitive  times.  This  old  cult  does  not  refer  to 
remote  and  fabled  ancestors,  but  to  the  great-grand- 
father, grandfather,  and  father,  and  in  general  to  per- 
sons known  to  the  worshipers  who,  transformed  into 
divinities,  continue  to  protect  the  family  and  to  exercise 
their  authority,  rewarding  good  actions  and  punishing  bad . 
This  cult  was  practised  by  the  greater  number  of  nations, 
among  whom  were  the  Indians,  Greeks,  Romans,  Chinese, 
and  ancient  Japanese.  Sacrifices  to  ancestors  were  not 
unknown  to  the  Hebrews  as  a  foreign  custom  or  pro- 

lCf.  §§  242,  440,  ante. 


TESTACY  AND  ANCESTOR  WORSHIP      739 

hibited  idolatry.  The  "sacra  privata"  of  the  Romans  had 
great  importance  and  influence  over  the  laws  and  edicts. 
Little  by  little  the  restrictions  placed  on  inheritance  by 
such  a  cult  to  the  advantage  of  the  pontifical  authorities 
disappeared  and  the  domestic  gods  became  mere  larvae. 
Lubbock  and  Spencer  and,  before  them,  Vico,  looked  upon 
ancestor-worship  as  an  imaginative  attribute  of  primitive 
men  such  as  we  have  just  said.  Lubbock  says  that  the 
savage  is  unable  to  understand  death  and  is  apt  to  con- 
fuse it  with  sleep.  In  sleep  the  spirit  lives,  although  the 
body  seems  dead.  It  is  natural,  therefore,  that  savages 
should  introduce  food  into  the  tomb,  because  death  is 
analogous  to  sleep.  The  spirits  of  the  dead  live  in  another 
world  and  have,  therefore,  great  power;  whence  the  cus- 
tom of  praying  to  the  dead.  Spencer  classifies  society 
by  the  criterion  of  a  belief  in  a  spiritual  world.  All 
people  admit  the  return  to  life  of  another  self  after  death. 
Among  them,  a  large  number  suppose  that  this  self  exists 
a  long  time  after  death.  In  this  number  are  those  nations 
which  practise  the  propitiation  of  spirits.  Among  these 
nations  there  are  some  unprogressive  and  stationary  in 
which  the  cult  of  ancestors  perpetuates  itself  like  a 
belief  in  the  immortality  of  the  soul,  and  among  the  last 
there  are  not  lacking  some  that  confer  a  preeminence 
upon  a  series  of  illustrious  ancestors.  For  example,  they 
exalt  the  leaders  of  a  conquering  race  into  a  group  of 
obscure  ancestors.  A  savage,  says  Spencer,  believes  in 
another  self  because  he  looks  in  springs  and  listens  to 
echoes,  noticing  the  reflection  and  the  sound.  It  was  a 
common  belief  among  the  Indians  that  the  living  rela- 
tions rendered  the  fate  of  the  soul  of  the  dead  more  com- 
fortable by  oblations.  The  Brahmins,  the  ministers  of 
the  oblations  and  ceremonies,  had  an  interest  in  the  divi- 
sion of  ownership  on  account  of  the  multiplication  of  acts 
of  piety  and  gifts.  Wherever  ancestor-worship  wasestab- 


740  INHERITANCE 

lished,  paternity  was  recognized,  judging  from  the  fact 
that  the  ancestor  worshiped  and  the  worshiper  both  be- 
long to  the  masculine  sex.  The  ancestor  worshiped  had 
all  the  appearance  of  the  Roman  paterfamilias,  or  the 
subject  of  the  patria  potestas,  writes  Maine,  the  author  of 
the  greatest  researches  in  primitive  law  on  this  subject. 
In  India  the  eldest  legitimate  son  could  offer  sacrifices 
for  the  soul  of  the  deceased  with  the  greatest  efficiency. 
But  if  he  was  lacking,  there  succeeded  to  the  rights 
and  inheritance  (that  was  a  kind  of  state  of  spiritual  ser- 
vitude) the  son  of  the  daughter  designated  by  the  father. 
Among  the  Athenians  there  was  the  same  custom,  be- 
cause a  father  who  feared  to  die  without  sons  had  the 
right  to  bequeath  his  cloak  to  his  daughter  and  her  future 
husband ;  the  son  of  this  marriage  grown  to  a  certain  age 
became  a  member  of  the  family  of  his  maternal  grand- 
father, taking  his  name  and  his  estate.  If  the  father  died 
intestate,  the  daughter  was  bound  to  marry  a  relation. 
So  too,  in  the  Middle  Ages,  it  seems  that  where  a  daugh- 
ter could  not  inherit,  her  son  sometimes  had  the  right  of 
succession.  There  being  no  right  in  India  to  designate  a 
daughter  through  whom  the  line  of  inheritance  should 
go,  it  fell  to  the  adopted  children  and  then  to  the  illegiti- 
mate children  of  women  living  in  the  family  and  subject 
to  the  authority  of  the  decedent.  These  sons  could  ful- 
fill all  the  rights,  as  even  a  slave  could  in  Rome.  If  all 
these  persons  were  lacking,  there  was  the  means  of 
"niyoga"  for  the  celebration  of  rites,  which  was  practised 
even  by  the  Hebrews  and  which  shows,  according  to 
McLellan,  the  reality  of  the  succession  of  polyandry  to 
promiscuity.  The  sacrifices  by  this  institution  had  to 
be  celebrated  by  the  son  whom  the  widow  had  by  a 
cognate  relative,  or,  if  there  was  none  such,  by  an 
agnate,  a  member  of  the  same  family  as  her  husband, 
or  of  the  same  caste.  Moses  ordered  that  if  anyone 


TESTAMENTARY  RIGHT  741 

died  without  a  son,  his  brother  could  marry  his  widow 
and  thus  give  children  to  the  decedent,  of  whom  the 
first  bore  his  name.  In  India  the  inheritance  of  col- 
laterals presents  no  little  obscurity  and  at  the  begin- 
ning was  not  clearly  determined.  Upon  the  failure  of 
relations  in  the  descending  line,  the  spiritual  relations, 
the  master,  the  co-disciple  or  king  were  called  to  the 
inheritance.  It  was  believed  that  a  collateral  could 
not  celebrate  the  sacrifices  with  sufficient  efficiency. 
Later  the  hierarchic  repugnance  to  fictitious  affiliations 
necessitated  their  admittance.  At  the  beginning,  when 
the  patriarchal  family  was  formed,  the  mother  was  not 
worshiped,  nor  the  maternal  grandfather  in  his  turn, 
since  they  were  not  equal  in  importance  to  the  paternal 
ancestors. 

§  497.  Foundation  of  the  Testamentary  Right.  Vari- 
ous have  been  the  theories  of  foundation  of  inheritance 
and  especially  of  testamentary  inheritance.  The  theories 
of  Plato  and  of  Aristotle  on  this  subject  were  inspired 
directly  by  the  political  conditions  of  the  place  and 
time  in  which  they  were  formed.  Plato  taught* that  the 
right  to  make  a  will  is  the  result  of  the  excessive  con- 
descension of  the  legislature,  since  the  testator  did  not 
have  full  consciousness  at  his  last  moments ;  that  for  such 
a  right  there  should  be  substituted  the  perpetual  trans- 
mission of  the  estate  in  the  same  family ;  and  that  upon 
the  failure  of  sons,  the  father  should  have  the  power  to 
dispose  of  only  one-tenth  of  his  estate,  the  remainder 
going  to  his  adopted  son.  Aristotle  saw  no  other  means 
for  the  preservation  of  the  estate  in  the  family  than  the 
abolition  of  the  testamentary  power,  for  which  he  would 
have  substituted  perpetual  transmission  in  the  male  line. 
Roman  philosophers,  on  the  other  hand,  preferred  the 
will,  largely  Roman  in  its  birth  and  development.  Cicero, 
Seneca,  and  Quintilian,  assigning  to  this  right  the  natural 


742  INHERITANCE 

base  of  the  sentiment  of  friendship  and  benevolence, 
were  careful  to  bring  to  light  the  close  connection  be- 
tween testamentary  power  and  foresight  for  the  future. 
The  jurisconsults  did  not  seek  philosophical  principles, 
but  they  did  not  know  how  to  conceive  of  the  power  to 
will  as  the  result  of  indulgent  laws.  Testamentary  power 
in  the  eyes  of  Ulpian  had  but  one  relation  to  law,  and  that 
was  to  find  in  it  no  obstacle.  "Lege  obvenire  hereditatem 
non  improprie  quis  dixeret  et  earn  quse  ex  testamento 
defertur;  quia  lege  XII.  Tabularum  testamentarise 
hereditates  confirmantur."  And  if  Papinianus  says, 
"Testamenta  factio  non  priviti  sed  publici  juris  est," 
he  did  not  mean  to  deny  the  natural  base  of  the  act  of 
the  last  will,  but  was  emphasizing  external  and  incidental 
forms.  The  commentators  discuss  whether  a  will  be 
"jure  naturae  et  gentium,"  or  simply  "juris  civili." 
Theophilus  accepts  the  belief  that  it  is  "jure  naturse  et 
gentium,"  and  enlarges  the  catalogue  of  Hermongenianus 
in  the  law  "ex  hoc  jura,"  of  the  Digest.  The  Glossists 
and  Alciati  combat  the  natural  origin  of  the  will,  basing 
their  arguments  on  various  citations  from  the  early  law. 
Bartolus  and  Baldo  cite  other  places  in  opposition, 
and  follow  the  contrary  belief.  Donnellus  and  Cujas 
develop  the  belief  of  Theophilus,  and  state  that  the 
right  to  will  is  based  on  the  real  connection  between 
the  individual  and  posterity.  Among  the  writers  on 
natural  law  who  represent  the  two  opposite  doctrines, 
Grotius  and  Puffendorf  are  the  most  distinguished. 
Grotius  believed  that  the  power  to  will  lies  in  natural 
law  and  likened  it  to  a  contract,  defining  it  as  an 
alienation,  conditional  upon  death,  revocable  until  the 
last  moment  of  the  life  of  the  alienor,  with  reservation 
of  possession  and  enjoyment  in  his  favor.  Wolff, 
Burlamaqui,  Lampredi,  Kant,  and  among  the  modern 
authorities,  Troplong,  accept  the  idea  of  Grotius. 


TESTAMENTARY  RIGHT  743 

Kant  finds  in  the  acquisition  of  an  inheritance  not  a 
common  and  regular  acquisition  but  an  ideal  one. 
He  observes  that  the  right  conferred  by  a  will  upon  the 
heir  is  the  right  of  accepting  after  the  death  of  the 
testator  his  promise  made  in  his  last  moments  to  give 
his  goods  under  certain  conditions.  The  acquisition  of 
the  inheritance  is  based  on  a  fictitious  or  ideal  contract 
between  the  alienor  and  his  heir  which  presumes  accep- 
tance in  the  manner  indicated,  because  everyone  wishes 
to  enrich  himself.  The  heir  acquires  a  right  of  inheri- 
tance, not  an  inheritance,  of  which  he  has  the  property 
but  not  the  possession,  since  he  has  only  an  actio  for  it. 
On  the  other  hand,  Puffendorf  argues  that  a  will  is  a 
creation  of  civil  law  and  opposes  its  assimilation  to  con- 
tract, because  a  contract  presupposes  a  meeting  of  two 
minds,  which  does  not  happen  in  the  case  of  a  will.  Puf- 
fendorf is  followed  by  Hennecius  and  St.  Thomas,  who 
cannot  be  persuaded  that  one  man  can  transfer  his  estate 
to  another  when  his  will  is  no  longer  efficacious  and  he  is 
no  longer  the  owner.  The  French  law  of  1791,  which 
abolished  almost  entirely  the  right  to  will,  is  the  logical 
consequence  of  the  conception  that  testacy  has  its  foun- 
dation not  in  the  nature  of  things  but  rather  in  conven- 
tion and  social  utility.  The  speeches  of  Mirabeau,  Robes- 
pierre, and  Tronchet  were  inspired  by  the  principles  of 
Puffendorf,  as  Gabba  says  in  his  book  on  inheritance. 
First  Bodin,  afterwards  Mably  and  Rousseau,  accepted 
the  Aristotelean  theory  that  the  State  should  dispose 
of  the  deceased's  possessions,  trying  to  keep  them 
as  far  as  possible  in  the  family.  Among  the  jurists 
prior  to  the  codification,  Bynkershoek  says  that  when 
a  man  dies  his  goods  are  vacant,  and  by  natural 
law  anyone  can  take  them.  Cardinal  De  Luca  and 
D'Aguesseau  hold  that  the  will  belongs  to  positive  law. 
Vinnio  and  Voet  approve  of  the  theory  of  Grotius.  Grav- 


744  INHERITANCE 

ina  thinks  that  the  origin  of  the  right  to  will  is  natural. 
Finally,  Leibnitz,  in  order  to  find  a  principle  on  which  to 
base  his  theory  of  testacy,  had  recourse  to  the  immortality 
of  the  soul.  In  the  discussion  which  preceded  the  forma- 
tion of  the  Code  Napoleon,  Bigot-Preameneu  claimed 
that  the  will  of  the  owner  was  the  rule  and  interven- 
tion of  the  law, — an  exception,  because  intestacy  rested 
entirely  upon  the  presumption  of  the  will  of  the  testator. 
Treilhard  thought  that  the  will  had  a  natural  origin.  Por- 
talis,  finding  the  inseparability  of  the  right  to  will  and 
ownership,  admitted  that  both  rights  were  of  the  same 
nature.  Such  a  conception  has  become  common  to  phil- 
osophers and  jurists  of  our  century  who  think  that 
intestate  succession  is  the  effect  of  family  ownership. 
The  philosophers  and  jurists  of  our  age  sometimes 
oppose  the  principle  of  individual  ownership  to  that 
of  family  control,  and  vice  versa,  wishing  to  base  the 
right  of  succession  exclusively  on  one  or  the  other  of  them. 
So  some  base  the  right  of  succession  on  the  express  will 
of  the  owner  and  succession  ab  intestato  upon  the  pre- 
sumption of  his  will,  excluding  the  idea  of  domestic  co- 
ownership.  Others,  on  the  contrary,  like  Hegel,  Cans, 
and  Stahl,  make  intestacy  a  primitive  and  normal  succes- 
sion and  testamentary  succession  secondary  and  imitative, 
thus  depriving  the  latter  of  a  strong  foundation.  The 
real  harmony  lies  in  the  antithesis  of  the  two  principles,  as 
we  will  see ;  but  first  it  is  necessary  to  remark  that  the 
socialists,  hostile  to  private  property,  combat  (as  is  logi- 
cal) the  right  of  inheritance.  Lassalle  is  distinguished  in 
our  day  for  the  criticism  of  such  a  right,  founded  accord- 
ing to  him  on  two  antiquated  notions,  the  absurd  contin- 
uation of  the  will  of  a  dead  man,  and  the  aristocratic 
co-ownership  of  goods  in  the  Roman  family.  We  may 
remark  too,  that  the  modern  collectivists  limit  their  denial 
of  the  right  of  inheritance  to  land  and  instruments  of 


FAMILY  CO-OWNERSHIP  745 

labor  and  recognize  them  for  personalty,  in  which  they 
recognize  private  property. 

§  498.  Intestacy  is  Founded  on  Family  Co-ownership. 
Before  determining  the  foundation  of  inheritance,  it 
is  necessary  to  make  two  observations.  The  first  is  that 
the  right  of  inheritance  refers  to  social  man  and  not  to 
man  in  a  hypothetical  state  of  nature  or  isolation,  and 
secondly  to  point  out  that  a  will  is  not  essentially  con- 
nected with  the  last  instance  of  life  but  can  be  made  at  any 
time.  These  two  considerations  save  the  mind  from  prej- 
udices which  have  had  no  little  influence  on  the  erroneous 
solution  of  the  question.  Now  coming  to  intestacy,  it 
cannot  be  doubted  that  its  principle  lies  in  consanguinity 
or  in  that  ethical  organism  of  the  family  which  shows  it- 
self by  a  community  of  goods.  When  the  family  becomes 
certain  and  establishes  itself  in  certain  places,  its  definite- 
ness  prompts  its  members  to  the  cultivation  of  land  and 
later  makes  the  beginning  of  ownership,  which  appears 
as  a  collection  of  means  suitable  to  the  preservation  and 
development  of  that  collective  body.  Ownership  in  a 
family  should  undergo  modification  according  to  the 
nature  and  purpose  of  the  family  itself,  which  is  an  inter- 
penetration  of  persons,  a  communion  of  sentiments,  affec- 
tions, ideas,  and  wills.  There  cannot  fail  to  be  co-owner- 
ship. In  every  age  and  country  the  members  of  the 
conjugal  and  domestic  societies  have  made  assignments  of 
family  goods  upon  the  death  of  one  of  them  and  have 
thought  themselves  injured  if  a  stranger  took  possession  of 
any.  The  sons,  participators  in  the  community,  did  not 
acquire  upon  the  death  of  the  father  a  new  right  but  merely 
obtained  greater  freedom  in  the  administration  of  the 
goods.  In  the  early  Roman  law  we  have  found  this  con- 
ception, which  is  not  aristocratic  but  directly  the  opposite. 
"In  suis  heredibus  evidentius  apparet  continuationem 
domini  eo  rem  perducere,  ut  nulla  videatur  hereditas  f  uisse, 


746  INHERITANCE 

quasi  olim  hi  domini  essent  qui  etiam  vivo  patre  quodam- 
modo  domini  existimantur :  unde  etiam  filiusfamilias 
appelantur,  sicut  paterfamilias,  sola  nota  hac  adjecta  per 
quam  distinguitur  genitor  ab  eo  qui  genitus  est ;  itaque  post 
mortem  patris  non  hereditatem  percipere  videntur:  sed 
magis  liberam  bonorum  administrationem  consequuntur: 
hac  ex  causa  licet  non  sint  heredes  instituti,  domini  sunt." 
The  domestic  co-ownership  of  the  Romans,  however,  is 
so  rigorously  conceived  as  to  render  the  goods  of  the 
family  inalienable,  acquiring  the  quality  of  "sui  et 
necessari."  The  inalienability  of  family  goods  not  only 
descends  from  the  ancient  Roman  law  but  is  the  prin- 
ciple of  all  primitive  laws,  which  always  regard  the  entity 
and  not  the  individual  as  the  subject.  True  domestic 
co-ownership  should  not  be  understood  in  this  manner, 
which  is  a  breach  of  individual  rights,  neither  should 
it  be  looked  upon  as  a  "communio  pro  indiviso"  in 
which  the  co-owner  has  an  equal  right  to  individual 
ownership  on  the  "pars  pro  indiviso,"  that  is,  where  the 
family  is  an  unequal  society  with  superiors  and  inferiors. 
The  inequality  does  not  render  co-ownership  impossible, 
but  only  makes  the  different  members  enjoy  an  unequal 
property  right.  Domestic  co-ownership  is  sui  generis 
and  presupposes  that  important  distinction  between  rela- 
tive and  absolute  property  originally  conceived  by  Ros- 
mini.  It  is  founded  on  the  full  and  absolute  right  of  the 
father,  head,  governor  and  representative  of  the  family 
and  on  the  relative  rights  of  its  members,  who  have  a  right 
conditioned  upon  the  death  of  the  father.  Whoever, 
teaches  Rosmini,  has  a  full  property  right  in  something 
over  which  another  person  has  a  relative  property  right 
can  use  and  consume  the  thing  to  a  definite  and  reason- 
able extent.  If  there  is  co-ownership,  which  is  an  associa- 
tion between  him  who  has  a  full  right  and  him  who  has  a 
relative  right,  the  first  must  use  it  for  the  purposes  of  the 


FAMILY  CO-OWNERSHIP  747 

co-ownership  and  society.  To  the  absolute  owner,  that 
is,  to  the  head,  belongs  the  decision  of  what  are  necessary 
or  useful  expenses  of  the  family  according  to  the  norm  of 
a  wise  control.  The  nature  of  relative  property  being 
what  it  is,  and  this  right  of  property  not  being  limited 
except  in  relation  to  a  full  owner,  it  follows  that  he  has  a 
right  above  all  other  persons  to  its  use  and  control ;  and 
that  upon  the  death  of  the  full  owner  these  goods  become 
his  absolutely.  From  this,  Rosmini  goes  on,  comes  the 
right  of  the  relative  owners  not  to  limit  in  the  hands  of 
the  full  owner  the  use  and  consumption  of  goods  gotten 
or  acquired  by  him,  but  to  demand  that  they  be  so  placed 
that  at  the  death  of  the  full  owner  they  can  be  distin- 
guished so  that  he  can  succeed  to  all  his  property.  With 
this  premise  it  is  easy  to  overcome  the  beliefs  and  doc- 
trines of  those  who  wish  to  base  intestacy  on  the  necessity 
of  educating  children,  consent,  benevolence,  the  presump- 
tion of  the  will  of  the  deceased ,  or  occupancy.  I  f  heredity 
exists  only  in  the  necessity  of  educating  the  children,  it 
loses  its  own  nature  and  becomes  a  simple  pension  estab- 
lished for  educational  purposes,  a  pension  which  has  no 
reason  for  continued  existence  when  it  has  attained  its 
end.  The  mere  sentiment  of  benevolence  is  not  of  itself 
a  claim  or  right.  The  conception  of  a  presumption  of 
will  denies  the  right  of  the  family  and  is  the  result  of  the 
principle  of  individual  caprice,  express,  tacit,  or  presumed, 
and  supposes  a  prior  testamentary  inheritance.  The 
theory  of  occupancy  considers  man  as  unattached  and 
vagrant,  without  any  thought  of  the  future.  Man,  accord- 
ing to  this  way  of  looking  at  it,  is  a  force  which  cannot  be 
effective  after  death.  Such  theory,  besides,  lays  open  the 
way  to  general  warfare,  because  everyone  would  enter 
the  struggle  to  occupy  the  inheritance  and,  what  is 
worse,  the  victory  in  this  bitter  struggle  would  not  always 
belong  to  the  relations. 


748  INHERITANCE 

§  499.  Testacy  is  Founded  on  Ownership.  If  the  im- 
mediate foundation  of  intestacy  rests  on  consanguinity 
and  domestic  co-ownership,  that  of  testamentary  suc- 
cession is  based  on  the  right  of  property;  he  who  is 
owner  of  something  can  dispose  of  it  freely,  saving  al- 
ways that  he  fulfills  his  duties.  The  right  to  will  is  in- 
separable from  ownership,  from  which  it  gets  its  reason 
and  intention.  It  has  its  deepest  roots  in  the  heart  of 
man,  who  is  a  social  and  collective  subject,  and  responds 
to  the  natural  impulse  by  which  everyone  more  or  less 
tends  to  prolong  his  memory  in  future  generations.  In 
general,  the  right  of  inheritance  connects  the  activity  of 
the  person  whose  inheritance  it  is  with  that  of  those  dear 
to  him  who  survive  him.  It  represents  the  connecting 
bonds  of  humanity  in  history.  Without  inheritance 
history  could  not  proceed,  because  the  present  is  the 
continuation  of  the  past  and  the  germ  of  the  future. 
Heredity  is  the  indispensable  condition  for  the  mul- 
tiplication of  capital,  the  increase  of  production  and 
wealth,  because  it  is  clear  that  man  would  not  have  the 
impulse  to  work  and  to  subject  himself  to  privations 
and  pain  if  he  were  not  sure  of  being  able  to  leave 
his  estate  to  his  family  and  to  dispose  of  his  goods. 
Neither  do  the  facts  that  according  to  natural  law 
testamentary  dispositions  were  not  recognized,  or  that 
the  act  takes  place  when  the  will  of  the  testator  is  no 
longer  efficient  through  death,  or  that  after  death  one 
feels  neither  pain  or  injury,  contradict  this  theory. 
Those  who  believed  that  these  facts  show  the  theory 
untenable  hold  that  the  statutes  give  an  "actio  violati 
sepulcri ' '  and ' ' actio  in j  uriarum ' '  for  a  slandered  memory , 
through  a  sentiment  of  humanity  for  the  insult  to  the 
honor  of  the  existing  family.  But  in  the  first  place, 
the  will  of  the  testator  is  efficient  at  the  moment  when 
he  makes  his  disposition,  since  it  is  the  will  of  a  living 


FOUNDED  ON  OWNERSHIP  749 

owner;  and  the  volitive  act  of  an  individual  in  legal 
form  acquires  a  substance  and  a  duration  independent 
of  the  life  of  the  subject  from  whom  it  emanates.  A 
will  is  an  act  that  stands  by  itself,  differing  from  a  con- 
tract or  gift.  It  is  not  a  contract  because  the  testator  can 
always  revoke  it,  and  a  transference  of  goods  revocable 
at  any  time  cannot  be  called  an  agreement.  Nor  can  it 
be  a  conditional  contract  because  the  conditions  would  be 
potential  and  would  lie  entirely  in  the  "si  voluero ;"  in  other 
words,  the  testator  would  transfer  his  goods  to  the  heir  on 
condition  that  he  wished  to  keep  his  promise.  It  is  clear 
that  the  actions  for  desecration  of  a  grave  and  for  defa- 
mation are  given  for  the  purpose  which  we  have  noted 
above ;  but  besides  such  objects  there  is  another,  the  pro- 
tection of  the  physical  and  moral  inviolability  of  a  man 
that  has  continued  a  past  and  begun  a  future  generation. 
The  tomb  is  the  resting  place  of  the  human  remains  and 
the  home  of  the  soul,  —  of  a  will  and  a  personality  in  de- 
composition. A  man's  memory,  reputation,  and  honor 
constitute  the  projection  of  his  existence,  forming  his 
moral  life,  which  continues  beyond  the  tomb.  The  recog- 
nition of  such  a  life  does  not  include  necessarily  the  idea 
of  the  immortality  of  the  soul  as  a  legal  principle.  The 
moral  life  finds  its  existence  in  the  estimation  and  honor 
of  the  person;  both  continue  in  the  memory  and  con- 
sciousness of  his  survivors  without  need  of  recognizing 
the  immortality  of  the  soul,  on  which  Leibnitz  and  Ros- 
mini  found  the  testamentary  right.  The  republic  of  the 
souls,  for  these  two  philosophers,  is  not  a  chimera. 
Admitting  the  immortality  of  the  soul,  it  is  incredible, 
they  say,  that  a  soul  after  the  loss  of  its  body  should 
not  still  have  some  relation  with  other  persons,  which 
binds  it  and  gives  it  what  is  its  natural  due,  the  desire 
for  its  last  will  to  have  weight  with  its  fellow-beings.  The 
dead  have  rights  not  of  themselves,  but  through  those 


750  INHERITANCE 

who  hold  them  dear,  and  by  those  who  take  their  inherit- 
ance. "Heredes  una  cum  defuncto  persona  reputantur," 
the  early  Romans  teach  us.  Now  a  spirit  exercises  its 
rights  most  beneficially  when  in  virtue  of  its  desires  the 
surviving  heirs  enjoy  the  property  left  behind,  which 
enjoyment  is  a  virtual  exercise  of  its  rights  because 
it  is  the  effecting  of  its  last  will.  If  this  will  is  not 
observed,  the  exercise  of  its  rights  is  denied,  and  it  is 
robbed  of  its  property.  There  are  some  who  have  not 
placed  the  true  value  on  this  beautiful  and  noble  theory 
of  Leibnitz  and  Rosmini,  because  we  must  recognize 
that  legal  relations  and  institutions  should  be  derived 
from  principles  of  reason  and  not  from  religious  beliefs. 
For  many,  the  immortality  of  the  soul  is  not  philo- 
sophically demonstrable  nor  can  it  be  considered  as  a 
postulate  of  practical  reason  although  accepted  as  an 
object  of  faith. 


INTESTATE  SUCCESSION  751 

CHAPTER  XXII 
INTESTACY  AND  THE  WILL 

THE  DEGREE  AND  QUALITY  OF  RELATIONSHIP.  —  THE  CAPAC- 
ITY OF  SUCCESSION.  —  THE  CLASSES  OF  HEIRS.  —  REPRESENTA- 
TION. —  CAPACITY  TO  MAKE  A  WILL  OR  TO  RECEIVE  THROUGH 
A  WILL.  —  KINDS  OF  WILLS.  —  INTESTACY.  —  THE  RIGHT  OF  REP- 
RESENTATION AND  TESTAMENTARY  SUCCESSION.  —  MISTAKES 
IN  THE  UNDERLYING  AND  IMMEDIATE  CAUSE.  —  CONDITIONS.  — 
THE  RIGHT  TO  THE  INCREASE.  —  SUBSTITUTION  AND  TRUSTS.  — 
PRINCIPLES  COMMON  TO  ALL  KINDS  OF  SUCCESSION. 

§  500.  Intestate  Succession  Follows  the  Degrees  of  Rela- 
tionship. Intestacy  is  founded  on  the  ties  of  blood  and 
should  be  regulated  by  the  quality  of  relationship.  Rela- 
tionship is  the  bond  existing  between  persons  of  the  same 
stock.  Its  degree  is  measured  by  the  number  of  genera- 
tions, each  generation  forming  a  degree.  In  quality  of 
relationship,  first  come  descendants,  then  ancestors,  and 
lastly  collaterals ;  relations  of  a  nearer  degree  exclude  any 
of  a  greater  degree.  These  are  principles  of  natural  law 
which  Justinian  recognized  in  regulating  ascendinginherit- 
ance,  decreeing  that  the  nearer  ancestors,  paternal  and 
maternal,  should  be  preferred  to  the  remote  without  re- 
gard to  the  origin  of  the  inheritance,  and  that  only  with 
the  ancestors  of  equal  degree  should  the  inheritance  be 
divided,  a  moiety  going  to  the  paternal  and  a  moiety  to 
the  maternal  ancestors,  regardless  of  their  relative  num- 
bers. Modern  legislatures  have  followed  the  Novella 
and  have  thus  sanctioned  the  precepts  of  natural  reason. 

§  501.  Incapacities  of  Intestate  Succession.  Every- 
body, as  a  general  rule,  has  a  right  of  inheritance.  In 


752  INTESTACY  AND  THE  WILL 

our  day,  foreigner,  monk,  or  prisoner  for  life  can  inherit 
as  they  are  no  longer  considered  to  have  ceased  to  be  per- 
sons. A  foreigner  has  civil  rights  which  belong  to  him  in 
his  quality  of  man;  a  monk,  if  a  citizen,  has  civil  and 
political  rights;  a  prisoner  for  life  can  be  deprived 
only  of  those  rights  which  cannot  be  reconciled  with  his 
condition.  He  no  longer  has  political  rights,  nor  the  pat- 
ria  potestas,  nor  can  he  be  appointed  a  guardian ;  he  will 
be  subject  to  a  legal  prohibition  by  which  he  cannot  ad- 
minister his  own  estate,  but  there  is  no  reason  for  deny- 
ing him  the  right  of  inheritance.  And  yet  there  are  some 
persons  incapable  of  inheritance,  though  these  are  the 
exception.  The  incapable  properly  so  called  are  incap- 
able in  respect  to  any  inheritance  and  can  never  acquire 
property  by  succession.  Some,  incapable  through  crime, 
are  excluded,  only  inheriting  from  him  against  whom 
they  have  committed  the  culpable  act.1  Those  also  are 
incapable  of  inheritance  who  at  the  time  of  the  vesting 
of  it  are  not  yet  conceived,  as  they  have  no  existence. 
Those  who  are  conceived  can  take  the  inheritance  when 
they  are  born,  by  what  we  have  said  before.2  Those  are 
incapable  through  crime  who  have  murdered  or  tried  to 
murder  the  person  from  whom  they  would  inherit,  and 
also  those  who  have  calumniously  accused  the  deceased 
of  an  infamous  crime;  and  those  who  have  hindered 
him  from  making  a  will  or  have  caused  him  to  make  one, 
or  have  suppressed,  altered,  or  changed  any  disposition 
of  it.  Incapacity  properly  so  called  exists  and  acts  of 
itself;  incapacity  through  crime  presupposes  a  legal 
conviction. 

§  502.  Four  Kinds  of  Intestate  Succession;  Relations. 
There  are  four  classes  of  heirs  ab  intestato,  legitimate 
relations,  natural  relations,  surviving  husband  or  wife, 

1  They  lose  the  inheritance  if  they  had  acquired  it. 
2C/.  §  180  ante. 


INTESTATE  SUCCESSION  753 

and  the  State.  The  first  class  is  divided  into  three  orders, 
descendants,  ancestors,  and  collaterals.  Love  of  descend- 
ants is  the  most  intense  and  therefore  there  is  no  doubt 
as  to  their  inheritance.  "Nullum  dubium  est  quia  omnia 
quae  nostra  sunt  liberis  nostris  ex  voto  paremus,"  says 
the  early  Roman  law.  Children,  therefore,  whether 
male  or  female,  of  any  marriage  should  be  preferred 
above  all  other  heirs.  The  descendants  of  children 
come  next,  according  to  proximity  of  degree  to  the  de- 
ceased ;  the  quality  of  consanguinity  should  prevail  over 
the  degree.  The  legitimated  and  the  adopted  children 
who  are  in  every  way  like  the  legitimate  should  be  num- 
bered among  the  latter.  After  the  children  come  the  an- 
cestors, because  "amor  primum  descendit  deinde  ascen- 
dit."  The  parents  take  equal  shares  in  an  inheritance 
from  a  son,  since  the  son's  affection  for  his  father  and 
mother  should  be  equal.  If  he  dies  leaving  no  father  or 
mother,  the  inheritance  should  belong  to  the  nearest  an- 
cestor without  distinction  of  lineage.  The  third  order  is 
formed  by  the  collaterals,  all  bound  together  by  strict 
bonds  and  constituting  a  family  living  under  the  same  roof, 
brought  up  and  educated  with  equal  care.  If  with  the 
parents  are  brothers  and  sisters  of  the  whole  blood,  they 
inherit  equally.  Half  brothers  and  sisters  cannot  be  ex- 
cluded from  participation  because  they  are  bound  by 
sufficiently  strong  affection  to  the  descendant,  but  they 
should  take  in  smaller  proportions  than  the  brothers  and 
sisters  of  the  whole  blood,  who  are  more  closely  bound 
together.  If  brothers  and  sisters  are  the  nearest  surviv- 
ors of  the  decedent  they  should  be  preferred  to  all  others. 
When  there  are  no  brothers  and  sisters,  the  descendants 
should  take  by  representation  and  succeed  to  the  posi- 
tions of  their  uncles  and  aunts,  or  if  they  are  lacking,  the 
nearest  relation.  There  is  a  point,  however,  where  the 
inheritance  of  collaterals  stops  because  the  consciousness 


754  INTESTACY  AND  THE  WILL 

of  family  unity  and  relationship  fails.  At  this  point  the 
State  becomes  the  heir,  as  is  reasonable,  because  rela- 
tionship beyond  a  certain  degree  is  not  felt. 

§  503.  Natural  Relatives  in  Intestacy.  The  second 
class  is  formed  of  natural  relatives.  Children  born  out 
of  matrimony  recognized  voluntarily  or  through  judi- 
cial declaration  can  share  in  the  inheritance  of  their 
parents.  And  it  is  right  that  they  should  not  be  de- 
prived of  it,  because  they  are  more  intimately  and 
deeply  bound  to  the  authors  of  their  days  than  col- 
laterals. On  the  other  hand,  the  law  cannot  make  the 
position  of  natural  children  equal  to  that  of  the  legiti- 
mate children  if  it  wishes  to  protect  morality  and  to 
preserve  the  true  rational  family.  It  is  true  that  natural 
children  come  into  the  world  without  any  fault  of  ^heir 
own;  but  this  is  no  reason  to  treat  them  equally  with 
legitimate  children  though  it  should  give  them  some  right 
to  participate  in  the  inheritance. 

§  504.  Husband  and  Wife  under  the  Intestate  Laws. 
The  surviving  husband  or  wife  represents  the  third  kind 
or  class  of  heir  even  by  natural  law,  because  in  matri- 
mony there  is  that  deep  and  full  interpenetration  of  two 
persons,  often  spoken  of  before,  which  cannot  fail  to  be 
sufficient  title  to  make  the  surviving  consort  share  in  the 
inheritance  of  the  decedent.  The  survivor  must  not  be 
exposed  to  danger  of  poverty  through  the  perversity  of 
heirs;  his  existence  should  not  depend  upon  the  pleasure 
of  the  children  and  he  should  have  a  share  not  less  than 
theirs.  The  Roman  "quarta  uxoria"  does  not  conform  to 
this  conception  since  it  is  given  only  to  the  poor  and  un- 
dowered  wife  who  must  undergo  the  humiliation  of  prov- 
ing her  own  need  in  order  to  obtain  the  hereditary  alms.  If 
the  right  of  succession  belongs  to  the  surviving  consort, 
provision  must  be  made  that  the  estate  of  one  family 
should  not  enter  another  through  a  second  marriage. 


TRANSMISSION  755 

The  statute  should  distinguish  in  the  protection  given  to 
the  surviving  consort  when  these  are  their  children  and 
when  there  are  only  distant  and  remote  relations. 

§  505.  The  State  is  the  Ultimate  Heir.  The  fourth 
class  of  heir  is  the  State.  The  estate  of  a  decedent 
who  has  not  any  relatives  must  be  regarded  as  vacant, 
and  therefore  belong  to  the  State.  It  is  right  that 
the  goods  should  devolve  to  the  State,  for  no  one 
beyond  the  degrees  of  consanguinity  that  have  ethical 
weight  should  inherit  by  the  intestate  laws.  The 
county  with  which  the  individual  is  connected  by 
closer  ties  would  not  be  an  irrational  beneficiary  which 
could  use  it  for  works  of  beneficence,  possibly  in  his  name. 

§  506.  Transmission;  Succession  per  Stirpes  and  per 
Capita.  If,  in  intestacy,  those  first  entitled  are  lacking 
or  are  incapable  of  inheriting,  their  descendants  take 
their  place  and  rights,  not  of  themselves  but  by  represen- 
tation. They  inherit  of  their  own  right  when  they  have 
a  right  of  immediate  inheritance  by  the  statutes.  By 
transmission  (transmitio)  the  heir  of  him  takes  in  whose 
favor  the  inheritance  first  lay,  and  who  died  without  hav- 
ing tacitly  or  expressly  accepted  it  or  without  having 
renounced  it.  Succession  by  representation  is  im- 
mediate, and  that  by  transmission  is  mediate,  because 
in  the  first  the  inheritance  has  not  devolved  to  him  who 
has  died  or  been  declared  incapable,  and  in  the  second 
the  "delatio  heretatis"  has  happened  in  favor  of  him 
who  takes  by  transmission.  They  inherit  per  capita 
who  are  of  the  same  degree  and  participate  in  the  inheri- 
tance in  equal  parts;  the  others  who  are  substituted 
in  the  place  of  another  inherit  per  stirpes.  The  represen- 
tatives take  what  would  have  belonged  to  the  man  whom 
they  represent  and  divide  it  among  themselves  or  accord- 
ing to  their  branches,  all  per  stripes.  Representation  has 
a  natural  reason  because  the  affection  is  constant  and  the 


756  INTESTACY  AND  THE  WILL 

love  of  ancestors  intense  towards  their  descendants  both 
of  the  second  and  greater  degrees,  and  because  the  chil- 
dren as  members  of  the  family  and  clothed  with  family 
rights,  among  which  is  that  of  inheriting  the  estate  of 
their  parents,  are  put  in  their  place.  It  is  not  equitable 
to  make  the  misfortune  for  a  son  in  the  death  of  his  father 
greater  by  depriving  him  of  his  inheritance  from  his  grand- 
father or  uncle.  Neither  is  it  right  to  inflict  the  effects 
of  incapacity  upon  innocent  individuals  because  "peccata 
suos  teneant  auctores."  Representation,  therefore,  con- 
forms to  the  principles  of  the  family  and  of  equity  and 
cannot  be  reduced  to  a  mere  invention  of  civil  law,  since 
it  is  a  derivative  of  ties  of  blood.  Its  reasons  are  found  in 
the  direct  line  of  descent  indefinitely  and  in  the  collateral 
lines  up  to  a  certain  point.  Representation  among  the 
descendants  of  brothers  and  sisters  of  the  decedent  can 
be  admitted  because  the  children  of  a  brother  or  sister 
are  considered  part  of  the  family  to  which  he  or  she  be- 
longs. The  nephew  considers  his  uncle  almost  like  a 
father  and  the  uncle  feels  a  semi-paternal  love  for  his 
nephew.  Further  the  reason  for  representation  does 
not  go.  It  is  not  at  all  possible  among  ancestors,  since 
love  descends  and  does  not  ascend ;  a  stream  never  flows 
to  its  source;  the  ancestor  is  always  the  head  of  the 
family  of  descendants.  It  is  a  matter  of  general  belief 
that  the  inheritance  from  distant  descendants  cannot 
take  place  immediately;  but  the  son  of  a  man  who  has 
renounced  the  inheritance  from  his  father  inherits  from 
his  grandfather  by  his  own  right,  being  the  nearest 
cognate. 

§  507.  Testamentary  Succession.  Coming  now  to 
testamentary  succession,  we  must  remember  that  every- 
body is  capable  of  making  a  will  or  of  taking  through 
a  will  except  certain  persons  determined  by  law.  The 
same  principle  is  applied  here  as  in  the  case  of  intestate 


TESTAMENTARY  SUCCESSION  757 

succession,  because  inheritance  is  a  natural  right.  They 
clearly  are  incapable  of  making  a  will  who  through 
immaturity  have  not  fullness  of  judgment,  and  those 
not  of  sane  mind.  The  testator  who  has  become  blind 
with  anger  against  his  legal  heirs  can  be  considered 
not  of  sane  mind  and  they  will  have,  therefore,  an 
action  "ab  irato"  ;  neither  can  a  will  be  made  under  in- 
fluence of  violence,  trickery  or  duress.  Fraud  has  two 
forms,  • — -  undue  influence  and  deceit.  Undue  influence 
consistsin  gifts,  demonstrations  of  affection  generallysim- 
ulated,  services,  complacency,  and  prayers,  with  the  object 
of  winning  liberality.  Deceit  that  differs  from  illicit  per- 
suasion is  accompanied  by  a  series  of  acts  intended  to 
surprise  the  mind  of  the  testator,  inspiring  in  him  a  dis- 
position different  from  what  he  really  has,  as  if  a  reply 
were  suggested  to  an  equivocal  question  contrary  to  the 
understanding  of  the  testator.  Then  those  who  are  not 
conceived  and  those  that  are  guilty  of  crime  are  incapable 
of  inheriting.  But  the  law  of  testamentary  inheritance 
can  admit  the  children  of  a  person  living  at  the  time  of  the 
testator's  death  to  the  inheritance  although  they  are  not 
conceived.  In  doing  this  it  does  not  make  a  precept  con- 
trary to  the  dictates  of  reason,  because  it  allows  the  testa- 
tor to  benefit  the  children  of  a  dissipated  person  and  does 
not  tie  up  the  inheritance  for  a  long  time.  There  are 
those  who  are  incapable  of  inheriting  from  certain  per- 
sons, as  the  executor  before  the  approval  of  his  account, 
the  notary,  the  witness  to  his  will,  and  he  who  has  writ- 
ten a  secret  will  in  which  there  is  no  approval  of  the  leg- 
acy in  the  handwriting  of  the  testator.  For  other  persons 
there  is  a  partial  relative  incapacity.  They  cannot 
receive  more  than  a  definite  fraction  from  certain 
descendants.  For  example,  it  is  not  permissible  to 
leave  children  born  out  of  matrimony,  even  if  recog- 
nized, more  than  the  proportion  established  by  law. 


758  INTESTACY  AND  THE  WILL 

A  widower  who  marries  again  cannot  leave  to  his  second 
wife  a  greater  proportion  then  he  leaves  to  the  children 
of  the  first. 

§  508.  Forms  of  Ordinary  Wills.  There  are  ordinary 
and  special  wills:  the  ordinary  are  of  two  kinds,  one  the 
holograph,  written  throughout,  dated  and  subscribed 
by  the  hand  of  the  testator,  and  the  other  by  notarial 
act.  A  holographic  will  separates  the  testator  from 
every  foreign  influence  and  gives  him  full  freedom  of 
providing  for  his  inheritance  without  the  dangers  of  an 
anticipated  publicity.  It  presents,  however,  some  in- 
conveniences because  it  is  uncontrolled  by  any  kind 
of  legal  form  and  remains  essentially  a  private  act.  It 
is  evident  that  the  legislature  should  not  hinder  the  free 
expression  of  the  will  of  a  disponer  by  many  and  grave 
formalities,  but  it  must  insist  upon  some  to  establish  the 
certainty  and  the  freedom  of  testamentary  dispositions. 
In  our  day  the  art  of  forgery  is  well  developed,  and  hand- 
writings are  difficult  to  prove.  And  the  opportunities  of 
forging  a  will  are  many  when  there  is  no  necessity  of 
depositing  it  with  a  public  official.  Let  us,  therefore, 
preserve  the  holographic  will,  but  impose  an  obligation 
of  filing  or  recording.  It  is  necessary  in  general  to 
lessen  the  formalities  in  cases  of  plague,  or  voyages,  wars, 
and  residence  abroad.  To  these  requirements  the  laws 
regulating  special  wills  are  made  to  conform. 

§  509.  Coexisting  Testacy  and  Intestacy;  The  Reserve.1 
In  Roman  legislation  the  principle,  "Nemo  pro  parte 
testatus  pro  parte  intestatus  decedere  potest,"  was 
strong.  The  reasons  for  this  principle  were  two,  —  the 
desire  to  avoid  division  of  the  "sacra  privata"  and  the 
supposed  impossibility  of  the  division  of  the  "universum 
jus  defuncti."  The  first  reason  has  fallen  into  the  realm 

1  The  reserve  is  the  portion  which  by  Continental  law  the  testator  is 
not  allowed  to  will,  but  which  is  governed  by  the  intestate  laws.  J.  L. 


THE  RESERVE  759 

of  history ;  the  second  is  founded  on  a  conception  foreign 
to  the  "universum  jus"  because  it  is  not  dismembered 
but  remains  one  in  the  multiplicity  of  individual  repre- 
sentatives, successors  of  a  common  identity  who  con- 
tinue the  personality  of  the  decedent  in  this  world. 
Intestacy  and  testacy  can  therefore  coexist.  And  their 
coexistence  is  essentially  necessary  since  it  can  be  shown 
that  intestacy  alone  would  absorb  the  whole  right  of 
the  individual  and  testacy  alone  would  deny  the  right 
of  the  family.  The  wisdom  of  centuries  has  found  har- 
mony in  the  coexistence  of  the  two  kinds  of  inheritance, 
in  the  division  of  the  estate  of  the  "de  cujus"  into  a 
devisable  part  and  a  reserve.  This  system  conforms 
to  reason  because  it  sacrifices  the  right  neither  of  the 
family  nor  the  individual,  but  pays  them  equal  regard. 
There  is  no  doubt  that  the  foundation  of  the  reserve 
lies  in  the  "jura  sanguinis,"  in  the  right  of  the  family. 
It  is  enjoyed  by  the  heirs,  but  at  the  same  time  its 
preservation  is  of  general  interest  since  it  looks  to  the 
hereditary  transmission  of  goods,  a  powerful  means  for 
the  preservation  of  the  family  and  therefore  of  civil 
society.  It  is  not  a  derivative  of  the  obligation  to  supply 
necessaries  because  it  cannot  be  reduced  to  a  simple 
pension,  neither  is  it  an  offshoot  of  the  civil  and  legal  con- 
version of  natural  duties  of  parents,  because  if  so  con- 
ceived it  would  be  able  to  take  the  same  position  as  the 
right  of  a  creditor  and  be  at  the  absolute  disposal  of  the 
legislator.  The  reserve  brings  into  existence  the  prin- 
ciple of  domestic  co-ownership.  It  is  the  quota  of  the 
inheritance  due  by  law  and  inviolable.  The  reserve 
as  a  quota  of  the  inheritance  cannot  be  demanded  or 
renounced  during  the  life  of  the  "de  cujus."  It  can  be  of 
any  kind,  personal  or  real,  or  consist  of  choses  in  action, 
existing  at  the  date  of  the  vesting  of  the  inheritance. 
It  entails  an  obligation  for  the  payment  of  debts.  Since 


760  INTESTACY  AND  THE  WILL 

the  reserve  is  ordered  by  law,  it  protects  the  family  rights 
and  it  follows  that  the  heir  who  takes  under  the  will  can 
claim  besides  his  legacy  a  right  to  the  reserve  itself,  of 
which  he  cannot  be  deprived  even  by  the  testator.  Dis- 
inheritance (allowed  by  Roman  law  before  and  after  Jus- 
tinian and  by  many  modern  civil  laws)  allows  the 
testator  to  follow  any  unreasonable  caprice  and  is  not 
necessary  when  the  "hereditas"  can  be  lost  through 
unworthiness.  Causes  of  unworthiness  can  be  sufficiently 
increased  to  allow  the  complete  abolishment  of  disinheri- 
tance. And  it  is  necessary,  therefore,  to  consider  as  un- 
worthy those  who  are  guilty  of  insults,  maltreatment,  or 
injury  towards  the  "de  cujus."  The  reserve,  founded 
on  the  substantial  right  of  the  family  and  established  by 
law,  is  inviolable,  whence  it  belongs  in  property  and 
possession  to  the  heir  and  is  not  subject  to  conditions, 
terms,  or  burdens. 

§510.  The  Criticism  of  the  Reserve.1  The  institution 
of  the  reserve,  not  recognized  by  the  common  law, 
has  been  the  subject  of  much  criticism  and  discussion 
among  jurists  and  economists.  It  has  been  said,  for 
example,  that  a  father  has  no  obligation  to  leave  his 
children  a  part  of  his  property,  but  is  only  bound  to 
give  them  a  good  education;  that  the  idea  of  domestic 
co-ownership  is  aristocratic  and  feudal;  and  that  the 
centre  of  modern  society  is  the  individual.  This  objec- 
tion should  have  no  weight  because  it  confuses  the  sub- 
stance with  the  method.  Co-ownership  is  the  intrinsic 
ideal  of  the  intimate  communion  of  the  family;  it  has 
acquired  different  forms  because  the  family  itself  has 
passed  through  many  phases.  Should  we  perhaps  destroy 
property  and  family  because  they  had  at  one  time  a 
feudal  character?  It  is  not  true  that  the  centre  of  modern 
society  is  the  individual.  The  affirmation  of  that  means 

lCf.  §  509,  n.  1,  ante. 


CRITICISM  OF  THE  RESERVE  761 

falling  into  individualism,  where  every  man  is  considered 
as  an  abstract  entity,  as  an  atom,  and  not  in  relation  to 
his  diverse  qualities  and  positions  in  the  family,  bodies 
corporate,  and  the  State.  It  is  said  that  the  children  may 
have  special  resources;  that  is  no  reason  for  depriving 
them  of  their  rights.  It  can  be  said  further  that  the  chil- 
dren may  be  unworthy,  without  reflection  that  either  their 
unworthiness  is  great  and  then  the  law  will  exclude  them 
from  the  inheritance,  or  else  it  is  small  and  then  it  is  not 
right  to  deny  them  their  reserve  because  a  father  will 
always  be  able  to  reward  or  punish  them  with  the  part  at 
his  disposition.  For  this  part  can  serve  to  equalize  the 
conditions  of  the  children  when  some  are  not  able  to  help 
themselves  by  their  own  intelligence  and  activity.  The 
accusation  of  producing  inertia  among  the  heirs  has  been 
brought  against  the  reserve  but  following  this  to  its  logi- 
cal conclusion  we  could  decide  that  in  order  to  increase 
individual  activity  we  should  dispossess  them  by  taxa- 
tion because  in  this  way  we  would  make  them  more  active. 
Not  enough  regard  is  given  to  the  fact  that  this  reserve 
fund  may  be  the  first  capital  to  work  with  and  that  it 
is  much  more  difficult  to  get  together  the  first  few  pen- 
nies than  to  acquire  the  second  quarter  of  a  million.  Fi- 
nally, the  reserve  is  accused  of  dividing  the  estate.  But 
it  has  been  observed  that  the  condition  of  property  is  good 
because  it  produces  an  equality  and  independence  con- 
ferring on  many,  means  suitable  to  sustain  life,  and  makes 
labor  possible  by  the  application  of  capital  to  industry. 
It  is,  therefore,  a  guarantee  of  order ;  it  increases  love  of 
country,  since  it  attaches  the  owner  to  the  soil.  Divi- 
sion of  property  is  an  evil  only  when  it  breaks  it  up  into 
petty  values.  This  evil  can  be  guarded  against  in  many 
ways.  In  conclusion,  the  reserve  has  the  merit  of  pre- 
serving the  family  from  thoughtless  liberality  and  of 
dividing  the  property  and  capital.  It  impedes,  if  but 


762  INTESTACY  AND  THE  WILL 

slightly,  the  increase  of  population  in  the  aristocratic 
classes  which  are  generally  incapable  of  giving  work 
to  society  in  any  considerable  quantity  or  quality,  as 
the  economist,  Rossi,  a  champion  of  the  reserve,  has 
said,  whose  authority  can  well  be  opposed  to  that  of 
Stuart  Mill,  the  champion  of  unlimited  testamentary 
power. 

§  511.  Extent  of  the  Reserve.1  The  reserve  belongs 
to  the  legitimated  and  adopted  children  and  their 
descendants,  as  they  enjoy  all  the  rights  of  the 
family.  Adoption  makes  the  adopted  son  the  equal 
of  the  legitimate  but  a  personal  relation  always  differ- 
entiates them.  Grandchildren  and  descendants  come 
in  by  the  right  of  representation.  If  the  testator  does 
not  leave  children  or  descendants  the  reserve  belongs 
to  the  ancestors  who  are  debtors  of  their  descendants 
to  the  amount  of  the  reserve.  There  is  here  a  recip- 
rocal obligation  of  true  natural  law.  To  the  wife 
and  natural  son  a  reserve  is  given  by  the  principles 
of  justice.  It  is  not  always  considered  as  a  quota 
of  the  inheritance  since  an  effort  is  made  to  favor 
children,  ancestors,  and  in  general  the  legitimate 
family.  In  fact,  the  law  sometimes  prescribes  that  the 
portion  belonging  to  the  wife  can  be  satisfied  by  the 
heirs  through  a  life  estate  or  an  assignment  of  interest,  and 
that  due  a  natural  son  can  be  paid  off  in  money.  The 
law  establishes  a  determinate  portion  for  a  widow  and 
natural  son  if  taken  from  the  portion  which  can  be  willed, 
in  order  not  to  prejudice  the  stronger  title  to  the  intes- 
tate part,  which  is  the  right  of  the  descendants  and  ances- 
tors. The  reserve  for  collaterals  is  not  possible  when  the 
system  of  private  and  acquired  goods  is  destroyed  which 
tends  to  the  destruction  of  the  family  estate.  The  devel- 
opment of  industry  and  commerce  and  the  knowledge  of 

lCf.  §509,  n.  I,  ante. 


EXTENT  OF  THE  RESERVE  763 

the  effective  limits  of  the  family  understood  in  a  particu- 
lar sense  have  destroyed  the  last  vestige  of  the  mediaeval 
system,  unknown  to  the  Romans.  A  collateral  reserve 
is  not  based  on  the  philosophy  of  law  because  the  brothers 
and  sisters  are  centres  of  other  families,  neither  is  it  based 
on  social  interest  which  does  not  need  a  limitation  of  the 
testamentary  power  through  the  enjoyment  of  a  modern 
reserve  by  the  brothers  and  sisters.  If  the  testator  wishes 
to  benefit  either  of  these  he  can  very  easily  do  it.  We  can 
note  that  these  persons  per  se  had  no  right  of  inheri- 
tance in  Roman  law.  To  fix  the  measure  of  the  reserve 
rationally,  it  is  necessary  to  take  into  consideration  both 
the  degree  and  kind  of  relationship  and  the  economic 
situation  of  the  family.  To  harmonize  the  economic 
situation  and  principles  of  justice,  it  is  necessary  that 
the  reserve  be  neither  too  little  nor  too  great.  If  it  is 
too  little,  it  will  not  be  a  reserve  but  rather  a  pension 
for  necessaries  and  would  lead  to  the  same  evils  as 
unlimited  testamentary  powei.  If  it  is  too  large,  it  will 
absorb  the  right  of  individual  property.  The  right  of  the 
family  must  be  balanced  with  the  right  of  individual. 
The  system  of  absolute  proportionality  between  the  re- 
serve and  the  number  of  heirs,  which  was  adopted  at  the 
time  of  the  French  Revolution,  absorbs  the  testamentary 
power ;  the  other  of  the  limited  proportionality  accepted 
by  Justinian  and  the  French  Code  is  unjust  and  often 
ineffective.  It  does  not  always  attain  its  object,  because 
the  ratio  should  be  stopped  at  a  certain  point  unless  one 
wishes  to  destroy  testamentary  power;  and  by  stopping 
it  one  decrees  an  equal  portion  for  five  children  as  for 
eight  or  ten.  Besides  it  is  not  just  because  it  limits 
capriciously  the  right  of  the  individual  owner  and  dis- 
poser. It  can  be  noted  that  such  a  system  renders  the 
inheritance  of  the  estate  uncertain  in  case  of  the  surviv- 
orship of  the  children.  The  system  of  the  invariable 


764  INTESTACY  AND  THE  WILL 

quota,  whatever  the  number  of  heirs,  followed  by  the 
Custom  of  Paris,  by  the  Code  Napoleon  and  the  Italian 
Code,  seems  preferable  because  it  considers  equally  the 
two  contradictory  rights  and  takes  account  of  economic 
factors  in  a  general  way.  In  the  most  cases,  the  num- 
ber of  the  descendants  to  inherit  is  greater  than  the 
number  of  ancestors  (and  descendants  are  more  fre- 
quently heirs) ;  the  quota,  therefore,  reserved  for  de- 
scendants should  be  greater  than  for  ancestors.  It  is 
true  that  the  result  of  this  system  is  that  the  intestate 
inheritance  is  very  small  if  there  are  many  children. 
But  it  is  impossible  to  hope  to  conform  to  the  indefinite 
variety  of  economic  needs  in  all  the  combinations  of  life. 
The  law  should  consider  what  ordinarily  happens,  "id 
quod  plerumque  accidit."  When  a  reserve  is  allowed  it  is 
evident  that  the  acts  of  liberality  inter  vivos  or  by  the  will 
should  be  reduced  if  they  exceed  the  disposable  part. 
Above  all  the  legacies  should  be  reduced  proportionally 
among  "haeredes"  and  then  the  legatees;  if  that  is  not 
enough  the  "donationes"  should  be  disregarded,  proceed- 
ing from  the  last  to  the  first.  The  legacies  should  be  re- 
duced first  because  they  are  acts  and  not  contracts  as  the 
"donationes" ;  the  last  gift  goes  first  because  this  is  often 
enough  to  supply  the  reserve.  The  testator  has  always 
the  power  of  foreseeing  the  possibility  of  a  reduction  and 
of  giving  a  preference  to  a  legacy  or  gift. 

§  512.  No  Representation  in  Testamentary  Succession. 
The  question  arises  if  the  right  of  representation  is 
applicable  to  testamentary  succession.  After  serious 
reflection  on  this  subject  it  does  not  seem  to  be  regularly 
applicable  because  in  testamentary  succession  the  rea- 
sons on  which  the  right  of  representation  is  based  are 
lacking;  there  is  a  mediate  transference  of  estate.  Often 
the  legatee  is  no  relation  to  the  testator  and  therefore 
ties  of  blood,  domestic  equity,  principles  of  family  life 


NO  REPRESENTATION  765 

should  not  be  relied  on.  The  affection  of  the  testator  is 
directed  to  the  person  to  whom  the  realty  or  personalty 
is  given  if  he  is  a  stranger  and  does  not  extend  to  his  de- 
scendants. In  other  words,  the  descendants  of  a  legatee 
obtain  the  realty  or  personalty  by  transmission  and  not 
by  representation  presupposing  a  "delatio  hereditatis"  or 
transfer  of  the  right  in  favor  of  the  legatee,  and  do  not 
immediately  come  into  the  inheritance  by  act  of  law  as 
happens  in  the  case  of  representation.  A  representative 
is  placed  in  the  position  and  given  the  rights  of  the  man 
he  represents  by  the  virtue  of  the  law  without  the  neces- 
sity of  the  devolution  of  the  inheritance  in  his  favor. 
This  is  in  force  in  inheritance  ab  intestato.  A  testamen- 
tary inheritance,  on  the  contrary,  depends  directly  on 
the  will  of  the  testator  and  does  not  come  into  the  power 
of  the  legatee  unless  by  possession.  It  cannot  as  a  rule  pass 
to  the  descendants  of  the  heir  without  "delatio;"  there- 
fore their  inheritance  is  mediate  and  transmissive.  The 
effects  of  transmission  are  different  from  those  of  repre- 
sentation, because  the  descend  ants  of  an  "hseres"  take  the 
inheritance  as  representatives  and  do  not  exclude  the  co- 
heir or  substituted  heir  and  would  not  hinder  the  right 
of  accrual.  But  descendants  taking  by  transmission 
would  exclude  the  co-heir  and  the  substituted  heir,  and 
would  prevent  the  right.  But  sometimes  a  legatee  is 
bound  to  the  testator  as  a  descendant,  brother,  or  sister. 
In  such  a  case  the  same  reasons  for  representation  as  in 
intestacy  are  found,  because  the  descendants  of  the  lega- 
tee are  in  respect  to  the  testator  in  that  line  or  degree  of 
relationship  in  which  there  would  have  been  representa- 
tion if  it  were  a  question  of  inheritance  ab  intestato.  If 
the  legatee  is  predeceased  or  unworthy,  his  descendants 
will  receive  the  inheritance  by  a  right  analogous  to  that 
of  representation  in  intestacy,  which  is  considered  as  a 
kind  of  tacit  or  legal  surrogation  not  extended  to  the  de- 


766  INTESTACY  AND  THE  WILL 

scendants  of  legatees  in  general,  as  is  easily  understood, 
because  it  is  based  on  the  ties  of  blood.  It  was  different 
under  Theodosian  transmission  introduced  into  Roman 
law  by  a  law  of  Theodosius  the  Second  and  Valentinian : 
"Filios  seu  filias,  nepotes  aut  neptes,  pronepotes  vel  pro- 
neptes  a  patre  vel  matre,  avo  vel  avia,  proavo  vel  proavia 
scriptos  heredes,  licet  non  sint  invicem  substituti,  seu  cum 
extraneis,  seu  soli  sint  instituti,  et  ante  apertas  tabulas 
defunctis  (sive  se  noverint  scriptos  heredes,  sive  ignora- 
verint),  in  liberos  suos  cuiuscumque  sint  sexus  vel  gradus, 
derelictam  sibi  hereditariam  portionem  posse  trans- 
mittere,  memoratasque  personas  (si  tamen  hereditatem 
non  recusant)  nulla  huiusmodi  prsescriptione  sibi  ob- 
stante,  earn  tamquam  debitam  vindicare.  Quod  scilicet 
etiam  super  legatis,  seu  fideicommissis  a  patre  vel 
matre,  avo  vel  avia,  proavo  vel  proavia  derelictis  locum 
habet."  Justinian  confirmed  the  Theodosian  trans- 
mission but  it  was  very  different  from  representation 
because  it  supposed  that  the  legatee  should  die  before 
the  reading  of  the  will  and  not  before  the  death  of 
the  testator.  It  was,  therefore,  a  true  case  of  transmis- 
sion and  not  of  representation.  The  Italian  Code  holds 
with  the  above  enunciated  principle  that  the  descendants 
of  a  predeceased  or  incapable  legatee  will  be  given  the 
inheritance  or  legacy  in  cases  in  which  representation 
in  their  favor  would  have  been  lost,  if  it  were  a  case  of 
intestacy,  unless  the  testator  has  otherwise  disposed  of  it; 
provided  that  it  is  a  question  of  a  legacy  of  rent  or  a 
right  of  a  personal  nature. 

§  513.  Requisites  of  Wills.  There  are  many  more 
things  to  note  about  the  disposable  part  of  an  estate. 
In  the  first  place,  a  legatee  may  be  designated  in  any 
manner  whatsoever,  the  only  requisite  being  that  he 
should  not  be  so  uncertain  as  not  to  be  determinable. 
Every  disposition  of  the  testator  must  be  certain  and 


ATTRIBUTES  OF  WILLS  767 

original,  that  is,  not  dependent  on  the  will  of  a  third 
party.  In  the  second  place,  an  error  in  respect  to  the 
underlying  cause  of  the  will  cannot  have  the  same 
effect  as  one  that  refers  to  the  immediate  cause.  The 
first  renders  the  will  invalid  because  the  testator  would 
not  have  made  that  disposition  if  he  had  known  of  a  fact, 
for  example,  the  existence  of  an  only  son  whom  he  be- 
lieved dead.  The  second  has  not  an  annulling  effect 
because  the  impulsive  cause  is  accessory  and  not  determin- 
ing ;  the  will  to  dispose  is  followed  with  the  impulse  taken 
away.  A  legacy  given  to  one  of  the  children  of  a  father 
in  consideration  of  a  numerous  offspring  holds  good  even 
if  at  the  moment  of  the  testator's  death  the  number  of 
children  has  been  much  reduced.  In  the  third  place,  it 
is  necessary  to  notice  that  the  testator  can  impose  bur- 
dens upon  the  legatee,  or  if  he  has  left  it  sub  modo  he  can 
impose  conditions.  Conditions  can  be  of  as  many  kinds 
as  those  in  contract.  The  Romans  taught  that  immoral, 
impossible,  and  illegal  conditions  in  a  will  "vitianturet 
non  vitiant"  because  they  were  looked  upon  as  the  effects 
of  mental  weakness  which  should  not  make  innocent  third 
parties  suffer  who  had  not  consented  to  them.  But  the 
Roman  doctrine,  received  by  some  codes,  should  not  be 
followed,  because  mental  disturbance  destroys  the  will. 
If  the  testator  knows  what  he  is  doing  he  cannot  be  ig- 
norant of  the  fact  that  the  fulfillment  of  the  above  kind 
of  condition  is  contrary  to  nature  and  law,  and  therefore 
it  is  logical  to  infer  that  he  has  not  true  desire  to  leave 
his  substance  to  the  legatee.  The  validity  or  invalidity 
of  the  legacy  depends  less  upon  the  regard  which  the  heirs 
merit  than  upon  the  state  of  mind  of  the  testator  at  the 
moment  in  which  he  makes  his  will.  Conditions  which 
prevent  a  marriage  are  considered  contrary  to  the  principle 
of  freedom  but  the  "conditio  viduitatis"  is  not,  it  being 
inequitable  that  the  wife  should  violate  the  faithfulness 


768  INTESTACY  AND  THE  WILL 

which  her  deceased  husband  wished  kept  by  contract- 
ing a  second  marriage,  and  still  profit  by  his  generosity. 
It  is  true  that  the  survivor  can  live  an  immoral  life 
without  losing  the  legacy.  But  this  cannot  be  helped 
because  the  deceased  has  trusted  to  morality  the  faithful- 
ness of  the  survivor.  The  recognition  of  the  above  con- 
dition is  bound  up  with  the  desire  to  favor  the  interest 
of  the  children.  In  the  fourth  place,  we  must  mention 
the  right  of  accrual  and  substitution.  The  right  of 
contribution  is  the  right  by  which  the  portion  of  a  legatee 
who  cannot  take  his  legacy  devolves  upon  the  co-heirs 
named  jointly  in  a  single  clause  of  the  same  will  without 
distribution.  It  must  be  presumed  that  the  legatees 
named  this  way  are  considered  by  the  testator  as  a  single 
person,  and  therefore  if  one  fails  his  part  should  go  to  the 
profit  of  the  others.  If  the  legatees  are  given  unequal 
parts  the  presumption  ceases  and  the  part  which  fails 
falls  into  the  intestate  estate.  Whoever  has  full  right  of 
disposal  of  part  of  the  goods  not  reserved  can  name  an 
heir  or  legatee  in  the  second  degree,  that  is,  to  take  upon 
the  failure  of  the  legatee  of  the  first  degree.  This  is  sub- 
stitution which  can  be  direct  or  indirect.  Direct  substi- 
tution is  that  by  virtue  of  which  the  substitute  inherits 
directly  from  the  decedent.  Simple  substitution  is  of 
this  kind  because  it  is  for  relatives  made  by  the  testator 
in  the  second  or  greater  grades  in  case  the  heir  of  the  pre- 
ceding grade  does  not  take  the  inheritance.  Simple  sub- 
stitution is  called  reciprocal  when  testamentary  co-heirs 
are  substituted  one  in  place  of  the  other.  Anotherexample 
of  direct  substitution  would  be  the  "pupillare"  of  the 
Roman  law,  which  takes  place  when  a  father  appoints  an 
heir  in  place  of  a  son  who  may  die  a  minor.  Of  the  two 
direct  substitutions,  the  simple  conforms  to  reason  be- 
cause the  right  of  disposition  of  the  testator  is  not  exer- 
cised in  a  manner  to  bind  the  property.  On  the  other 


ATTRIBUTES  OF  WILLS  769 

hand,  the  testator  has  the  right  to  an  actual  heir  chosen 
by  him  and  can  provide  for  the  case  in  which  the  first 
named  does  not  wish  or  cannot  take.  The  Roman  pupil- 
lary substitution  is  no  longer  admissible  because  it  is  the 
consequence  of  the  patria  potestas  which  no  longer  exists, 
by  which  the  will  of  the  father  took  the  place  of  the  will 
of  a  minor  son  in  making  final  disposition  of  his  property. 
Indirect  and  uncertain  substitution  is  the  "fidei  commis- 
sus,"  dependent  upon  the  obligation  of  reserving  or 
restoring  some  part  of  the  inheritance  or  all  of  it  to  a 
third  person.  This  kind  of  substitution  is  no  longer 
recognized  because  it  is  the  effect  of  the  unreasonable 
caprice  of  an  old  man  with  one  foot  in  the  grave  and 
ties  up  the  commerciability  of  the  legacy.  We  must 
not  confuse  this  kind  of  substitution  with  a  trust  estate 
which  exists  where  someone  is  made  heir  with  the 
secret  agreement  of  being  only  an  administrator  or 
bailee  of  the  inheritance  until  it  can  be  restored  to  the 
legatee.  Fideicommissary  substitution  is  patently  ac- 
companied by  the  burden  of  preserving  and  restoring 
and  prevents  the  alienation  of  the  goods,  but  the  legatee 
can  enjoy  them,  while  a  trustee  can  keep  nothing,  and 
must  return  the  inheritance  with  the  interest.  To-day, 
testamentary  trusts  are  recognized,  but  the  Italian  Civil 
Code  forbids  the  proof  of  a  trust  in  order  to  avoid 
many  difficulties  except  where  the  trust  was  employed 
to  aid  a  person  incapable  of  inheritance.  In  that 
case  alone,  one  is  allowed  to  prove  that  the  legatee  is 
a  trustee.  The  making  of  a  legatee  by  a  certain  day 
or  until  a  certain  day  is  not  permissible,  since  it  is 
trust.  For  if  a  legatee  is  only  appointed  after  a  given 
day,  the  heir  at  law  will  inherit  from  the  testator  with 
the  duty  to  preserve  and  restore,  and  if  the  legatee 
is  appointed  from  a  certain  day  the  heir-at-law  will 
have  to  restore  the  inheritance  to  the  estate  or  to 


770  INTESTACY  AND  THE  WILL 

the  subsequent  legatee.  Finally  we  must  mention  a 
few  dispositions  under  particular  bequests  and  trusts. 
A  trust  is  a  disposition  under  a  particular  clause  by 
which  the  testator  imposes  an  obligation  in  favor  of  a 
third  person.  It  is  logical  that  the  testator  to  make  a 
trust  should  have  the  faculty  of  disposing  or  willing.  The 
trustee  on  his  side  must  have  the  capacity  of  receiving 
by  will  because  the  legacy  is  a  part  of  the  inheritance. 
Any  legatee  can  be  burdened  by  a  trustee's  duties,  even 
an  "haeres,"  as  well  as  legatees  and  adopted  or  substituted 
"haeredes."  You  must  note  that  on  the  reserve  no  bur- 
dens, conditions,  or  obligations  can  be  thrown  because 
it  is  the  part  consecrated  to  the  family  by  statute. 
Everything  can  be  willed  which  is  in  the  trade  of  the 
legatee  or  can  be  useful  to  him.  Things  not  in  the 
trade  of  the  testator  or  for  the  legatee  but  in  the  trade 
of  the  beneficiary  can  be  willed.  Existing  things,  future, 
realty,  personalty,  particular  objects,  titles  to  rights 
and  corporeal  and  incorporeal  objects  are  the  subject 
of  trusts. 

§  514.  The  Vesting  of  a  Legacy.  The  common  prin- 
ciples of  every  kind  of  inheritance  refer  to  vesting, 
devolution,  acceptance,  refusal,  the  division  of  the  in- 
heritance, and  to  collation.1  The  inheritance  vests  at 
the  death  of  the  testator  or  the  person  from  whom  the 
inheritance  comes.  Inheritance  from  a  living  man  is 
not  possible  because  whoever  is  alive  has  and  exercises 
as  pleases  him  the  right  of  property.  The  vesting  of  the 
inheritance  makes  the  moment  certain  in  which  it  begins 
to  exist  and  can  devolve;  and  at  that  instant,  therefore, 
one  should  find  conditions  which  make  the  heirs  capable 
of  inheriting.  The  devolution,  as  conceived  by  the  Ger- 
man law  and  by  the  French  and  Italian  Codes,  is  the  pas- 
sage of  the  inheritance  into  the  power  of  the  heirs,  accom- 
panied by  the  power  of  acceptance  or  refusal.  They 

lcf.  §  516  post. 


ACCEPTANCE  OF  A  LEGACY  771 

have  full  right  from  the  moment  of  the  vesting  of  the 
inheritance,  both  in  respect  to  property  and  possession. 
This  is  the  signification  of  the  old  German  and  French 
motto,  "the  dead  give  to  the  living."  We  must  observe 
that  the  maxim  would  be  true  if  the  inheritance  was 
irref usable,  if  there  still  existed,  as  there  did  in  Rome, 
"heredes  necessari"  who  inherited  even  "invito  animo," 
slaves,  for  example,  or  "heredes  sui,"  who  at  first  were 
involuntary  heirs  as  were  the  sons  and  descendants  of 
the  deceased,  so  made  by  the  patria  potestas  at  the 
moment  of  death.  But  these  two  kinds  of  heirs  no 
longer  exist,  because  modern  law  only  recognizes  volun- 
tary heirs  out  of  respect  for  principles  of  individual 
liberty.  If  an  act  of  will  is  necessary  for  the  renuncia- 
tion of  the  inheritance,  it  would  be  logical  and  just  to 
demand  for  its  acquisition  the  act  of  "aditio"  established 
by  the  Romans  for  "heredes  voluntarii"  or  "extranei." 
The  modern  conception  of  devolution  is  contradicted, 
because  the  acquisition  ipso  jure  is  not  in  accord 
with  the  contemporaneous  existence  of  the  faculty  of 
accepting  or  refusing;  neither  can  it  be  reconciled  with 
the  existence  of  unclaimed  legacies.  Acquisition  is  the 
result  of  the  exercise  of  such  a  faculty  and  cannot 
logically  come  first.  The  three  Roman  principles,  the 
"acquisitio  ipso  jure"  for  the  "heredes  sui,"  the 
"aditio"  for  strangers,  and  the  judicial  act  for  the 
"bonorum  possessor"  form  the  base  of  the  three  existing 
legislative  systems  existing  in  Europe  to-day.  The  first 
principle  is  followed  by  the  French,  Prussian,  and 
Italian  law,  the  second  by  Saxon  law,  the  third  by  the 
Austrian  Code. 

§  515.  Acceptance  of  a  Legacy.  The  acceptance  of 
an  inheritance  can  be  simple  or  with  an  inventory. 
The  first  is  express,  when  one  assumes  the  title  and 
quality  of  heir  by  an  act,  or  tacit  if  the  heir  does  some 


772  INTESTACY  AND  THE  WILL 

act  that  necessarily  shows  an  intention  of  accepting 
and  which  he  would  have  no  right  to  do  except  as  heir ; 
it  is  presumed,  if  by  force  of  law  and  in  consequence 
of  his  acts  he  is  retained  as  heir  without  the  con- 
trary being  admissible  or  provable ;  this  happens  where 
one  conceals  the  inheritance.  The  effect  of  accep- 
tance pure  and  simple  exists  in  the  commingling  of  the 
estate  of  the  heir  and  that  of  the  decedent  and  therefore 
the  heir  is  personally  liable  to  the  creditors  of  the  decedent 
"ultra  vires  hereditatis!'  Acceptance  with  the  benefit 
of  the  inventory,  always  express,  prevents  the  commin- 
gling of  the  two  estates.  Therefore,  the  heir  is  obligated 
to  the  creditors  of  the  deceased  only  to  the  extent  of  his 
inheritance.  The  renunciation  must  always  be  express 
and  never  presumed.  Both  acceptance  and  renunciation 
can  be  made  during  the  life  of  the  "de  cujus"  or  when  the 
inheritance  vests.  An  inheritance  in  common  between 
heirs  can  produce  much  inconvenience  and  many  dis- 
advantages but  they  can  proceed  amicably  or  legally  to 
a  partition  which  is  a  declarative  or  specific  setting 
aside  of  their  quota  of  a  common  inheritance.  The 
quota  of  each  co-heir  is  certain  in  quality  but  uncertain 
in  quidity.  With  the  division  this  uncertainty  ceases 
and  each  heir  is  held  the  single  and  immediate  owner 
of  his  part. 

§  516.  Collation.  A  collation  is  the  restitution  which 
a  descendant  co-heir  makes  to  the  hereditary  estate  in 
favor  of  brothers,  sisters,  and  their  descendants,  of  all 
he  has  received  from  the  deceased  common  ancestor 
during  his  life  as  a  direct  or  indirect  gift.  It  is  founded 
on  the  presumed  desire  of  the  deceased  ancestor  not  to 
alter  the  equality  among  his  descendants.  It  is  reason- 
able to  suppose  that  the  deceased  ancestor  would  have 
made  his  gifts  under  a  title  of  set-off  and  with  the  intent 
of  obliging  the  donee  to  return  all  gifts  to  the  hereditary 


THREE  FACTORS  IN  INHERITANCE      773 

fund.  "Pater,"  say  the  Glossists,  "non  debet  sua 
inaequalitate  ex  pluribus  filliis  unum  facere  legitimum  et 
alium  bastardum."  From  this  we  see  that  collation 
takes  place  only  in  favor  of  descendent  co-heirs  and  in 
an  inheritance  from  a  common  ancestor.  Collation  can 
be  actual  or  fictitious.  It  is  actual  when  the  very  goods 
to  be  returned  are  given  back  to  the  hereditary  fund; 
fictitious  when  the  value  of  the  goods  is  deducted  from 
the  portion  of  the  donee. 

§  517.  Three  Factors  in  Inheritance.  In  inheritance 
in  general  it  is  necessary  to  distinguish  three  elements, 
the  individual,  the  family,  and  society.  Ownership 
presumes  these  three  factors  and  law  should  attribute  to 
each  of  them  in  inheritance  what  belongs  to  it.  Law 
must  recognize  the  right  of  the  owner,  and  the  family 
and  social  ties;  two  ties  which  give  rise  to  two  lights. 
It  must  conform  not  only  to  the  principles  of  reason 
but  to  the  conditions  of  time,  place,  and  civilization. 


INDEX 


[The  numbers  refer  to  the  pages.] 


"Abriss  des  Systems  der  Philoso- 
phic des  Rechts  oder  des 
Naturrechts,"  by  Krause, 
239. 

Acceptance  (§  365),  574. 

Accession  (§  238),  397. 

Adoption  (§485),  720. 

history  of  (§  486),  722. 
rational  basis  (§  487),  723. 

Adoption  and  marriage  (§  449), 
672. 

Adultery  (§  473),  708. 

Aguesseau,  D',  743. 

Ahrens,  98,  241,  289,  268,  269,  547, 
553,  699,  728. 

Albertus  Magnus,  8,  276. 

Alexander  of  Aphrodisiae,  14. 

"Allgemeine  Practische  Philoso- 
phic," by  Herbart,  238. 

Alteration  (§  239),  398. 

Amari,  108,  109,  110. 

Anaxagoras,  1. 

Ancestor  worship  (§§  139^  496), 
124,  738. 

Ancient  Law,  Modern  researches 
(§40),  125. 

"Ancient  Law."  by  Maine,  301, 
404. 

Andreani,  608. 

Anguilli,  91,  141,  142,  168. 

Antichresis  (§  337).  534. 

Antichissima  Sapienza  degli  Itali- 
ani,  Dell',  by  Vico,  41. 

"Antiquarische  Brief e,"  by  Bac- 
hofen,  636. 

Anzaldo,  517. 

Appropriation  (§  237),  396. 

Aquinas,  8,  134,  276. 

Arabian  philosophers,  8. 

Arago,  468. 

"Archiv  fur  Civilistische  Peroxis," 
by  Windcheid,  578. 

Ardigo,  265. 

Aristarchus,  112. 


Aristotle,  the  Stagirite,  2,  4,  8,  91, 
96,  104,  108.  109,  112,  131. 
150,  155,  160,  172,  181,  184, 
191,  192,  198,  233,  240.  243. 
248,  255,  276.  285,  286,  296, 
306,  320,  401,  408,  516,  542, 
554,  667,  716,  741. 

"Armonie  nelle  Antiche  Dottrine 
Antropologiche  e  Morali 
dell' India  e  della  Grecia," 
by  Merlo,  123. 

Arnold,  406. 

Aryan  language  shows  juristic  ten- 
dency (§37),  122. 

Aryan  race  is  juristic  (§  36),  120. 

Aryan  and  Semitic  races  (§34),  119. 
their  difference  (§35).  119. 

Association,  freedom  of  ( §  4 1 0) ,  6 1 2. 

Association  and  associations 
(§404),  618. 

Associations  and  corporations.  See 
corporations. 

"Assunto  Primo  della  Scienza  del 
Diritto  Naturale,"  by  Ro- 
magnosi,  96. 

Augustine,  7. 

Augustus,  300. 

Austin.  102.  307. 

Averroes,  14,  28. 

Bachofen.  406.  640,  684. 

Bacon,  Francis,  19.  56.  135.   136, 

210. 

Bacon,  Roger,  11. 
Bagehot,  122,  242.  258.  301,  354. 

565. 

Bahr,  578. 

Bain,  106,  107,  158.  161.  167. 
Bakunim,  501. 
Balbi  Marco,  470. 
Baldo.  742. 
Barbeyrac,  33. 
Baron.  370,  375.  377. 
Bartolus,  9,  742. 


776 


INDEX 


[The  numbers  refer  to  the  pages.] 


Bastiat,  109,  269,  345,  394,  497. 
"Bau  und  Leben  des  Socialen  Kor- 

pers,"  by  Schaffle,  258. 
Bebel,  683,  684,  685,  687. 
Beccaria,  61,  462,  470,  497. 
Becquerel,  468. 
"Begriff  und  Wesen  der  Sogenan- 

ten  Juristischen  Personen," 

by  Zitelmann,  371. 
Bekker.  366.  367. 
Bellini,  22. 
Belot,  419. 
Bentham,  38,  102,  209,  214.  217, 

219,  240,  246.  307,  386. 
Bigot-Preameneu,  744. 
Bills  of  exchange  (§  411),  613. 
Biology  and  economics.    See  Eco- 
nomics. 
Bluhme,  305. 

Bluntschli.  287,  292,  370.  375. 
Bodin,  17,  743. 
Bohlau.  364. 
Bohm-Bawerk,  284. 
Bolze,  377. 
Bonelli,  380. 
Bonghi,  687,  698. 
Bonifazio,  Giovanni,  345. 
Boussingault,  468. 
Brinz,  366,  367. 
Bruno,  15.  30.  134,  155.  177,  191, 

213,  219,  246. 
Bruns,   364,   539,   540,    542,    547, 

548,  549. 

Buckle,  253,  254,  258,  269. 
Burke,  62. 

Burlamaqui,  33,  742. 
Burtagnolli,  406. 
Butler,  38. 

Berkeley,  27,  138,  175. 
Berner,  330. 
Beseler,  370,  375,  377. 
"Besitz       nach       Oestreichischen 

Rechts,    Der,"    by   Randa, 

364. 
"Besitzklagen  des  Romischen  und 

Heutigen  Rechts,"  by  Bruns, 

539. 
"Besitzwille,    Der,"     by    Ihering, 

550. 
Betrothals  (§  452),  673. 


Cabanas,  37. 

Cairns.  395. 

Callicles,  348. 

"  Cambiale,  La, "  by  Marghieri,  624. 

Campanella.  15,  158,  163,  171. 

Capacities  of  the  spirit,  Qualitative 

and     quantitative     distinc- 
tion (§  176),  324. 
Capital  and  labor,  fundamentally 

one  (§  297),  480. 
not     antagonistic      (§     314), 

501. 

Capuanus,  243. 
"Carattere  Formale  del  Principio 

Etico,  Sul,"  by  Chiappelli, 

231,  233. 
Carle,  252. 
Carneades,  108. 
Carpozovius,  61. 
Carrara.  335.  607. 
Casaregis,  517. 
"Caso  di  Socialismo  di  Stato,  Un," 

by  Salandra,  628. 
Causa  (§  372).  582. 
Causa  sui,  183. 
Cavagnari,  250. 
Celsus,  276,  306. 

Chance  and  statistics  (§83),  188. 
Chance,  Result  of  causality  (§81), 

183. 
Character  ^§  80),  181. 

definition  of  (§82),  185. 
Chaveau  and  Helie,  334. 
Chiappelli,  130,  231,  233,  347. 
Christian  philosophy,  7. 
Chrysippus,  132. 
Cicero,  5,  94,   108,   131,  133,    134, 

243,  244,  245,  276,  285,  296, 

306,346,516,679,737,741. 
"Cit6    Antique,    La,"     by     Cou- 

langes.  407. 
Clarus,  61. 
"Coalizioni   Industriali,"    by   Del 

Guidice,  489. 
Cocceius,  34. 
Cocchia,  391. 
Codes  (§  165),  311. 
Cogito  ergo  sum,  19,  37. 
Cognitatio  abdita,  163,  171. 
Collation  (§  516),  772. 


INDEX 


777 


[The  numbers  refer  to  the  pages.] 


Collectivism.    See  property. 

modern,  based  on   economics 

(§  313),  500. 
"Commento  alia  Procedura  Sarta," 

Sciajola,  542. 

"Commento  Sistematico  del  Co- 
dice  di  Procedura  Civile," 
by  Viti,  546. 

Communism.    See  Property. 
Communism,   result  of  difference 

of  classes  (§312) .499. 
Marx    presupposition    untrue 

(§319),  510. 

criticism  of  Marx  (§  318),  507. 
Communion   of   women,    Modern 

examples  (§  426),  640. 
proved    by    historic    facts 

(§427),  641. 
Comte,  27,  82,  91.  175,  262,  309, 

320.  386.  681,  699. 
"Concetto  del  Caso  in  Aristotle, 

II,"  by  Tocco,  184. 
"Concetto  del   Diritto  Positive," 

by  Filomusi-Guelfi.  297. 
"Concetto    del    Diritto    Secondo 
Spinoza,  II,"  by  De  Tullio, 
213. 

Condillac,  37,  158. 
"Condizione  della  Donna  nel  Di- 
ritto Italiano,  La,"  by  Criso- 
cuolo,  683. 
Confusion,  564. 
Consciousness  (§66),  162. 
Consideration  (§372),  582. 
Constantine,  471,  475. 
"Contemporary     Socialism,"     by 

Rae,  445. 
Contract,    confusion    with    status 

(§  208),  359. 
consideration  (causa),  (§  372), 

582. 

definition  of  (§  360),  567. 
division  of  (§  374),  584. 
division     of,      Trendelenburg 

(§  375),  584. 
division  of   Trendelenburg   is 

exhaustive  (§  376),  586. 
duty  to  keep  (§  363),  570. 
essentials  of  (§  264),  573. 
ethical  origin  of  (§  358),  563. 


Contract — (continued) . 

freedom      of,     not     absolute 

(§  379),  591. 
freedom  of,  not  license  (§  377), 

588. 

freedom    of,    should    be    pro- 
tected by  law  (§  378),  589. 
history  of  (§  361),  568. 
historical  phases  of   (§  362) 

569. 

interpretation  of  (§  373),  583. 
must  be  possible  (§  371),  581. 
of  labor,  economic  duress 

(§  380),  591. 
the    meeting   of    the    minds 

(§  368),  577. 

void  and  voidable  (§  369),  579. 
"Contrat  Social,    Le,"    by  Rous- 
seau. 213. 
Corporation,  an  organism  (§  220), 

372. 
Corporations.        See    Incorporeal 

Persons. 
Corporations      and      associations 

(§  223),  376. 
"Corso  Moderna  di  Filosofia   del 

Diritto,"  by  Cavagnari,  250. 
"Coscienza,  Volonta,  e    Liberta," 

by  Masci.  164. 
Cosmic  evolution,  The  doctrine  of 

(§  53).  141. 
Coulanges,  407. 
Cournot,  191. 

"  Cours  de  Droit  Naturel  ou  Philoso- 
phic der  Droit,"  by  Ahrens, 

239. 

Cousin,  158,  384. 
"Coutumes  des  Sauvages  Ameri- 

canes,  Les,"  by  Lafitau,  636. 
Coviello,  531. 
Crescenzio,  De,  547. 
Criscuolo,  683. 
"Criticadi  una  Scienza  della  Legis- 

lazione     Comparata,"     by 

Amari,  108. 

"Ctetics,"  by  Aristotle,  276,  401. 
"Cursus    des    Institutionen,"    by 

Puchta,  406. 
Curtius,  166. 
Custom,    Primitive    and    general 

(§  158),  301. 


778 


INDEX 


[The  numbers  refer  to  the  pages.] 

Custom — (continued) . 

disappears      under      statutes 

(§  159),  303. 
first   source   of    positive    law 

(§  157),  300. 


Dankwardt,  284. 

Dante.  9.  134,  240,  285,  713. 

Darwin,  68,  148.  149,  152,  240, 
279, 

"Data  of  Ethics,  The,"  by  Spen- 
cer, 220,  226. 

"Debtor,  Death  of,  566. 

"De  Give,"  by  Hobbes,  210. 

De  Felice.   See  Felice. 

"De  Jure  Naturae  et  Gentium," 
by  Puffendorf,  246. 

De  Maistre.    See  Maistre. 

"De  Natura  Rerum,"  by  Lucre- 
tius, 637. 

"De  Officio  Hominis  et  Civis,"  by 
Puffendorf,  246. 

DeTullio.  SeeTullio. 

"De  Universi  Juris  Principio  et 
Fine  Uno,"  by  Vico,  94. 

DelGiudice.  See  Giudice. 

Delphic  Oracle,  285. 

Demelius,  366. 

Democritus,  1. 

Descartes,  18,  28,  163. 

Desire  (§78),  179. 

Destruction,  564. 

Dicearchus,  109. 

"Diceosina,"  by  Genovesi,  50,  358. 

Diderot,  518. 

Digest,  208,  742. 

"Dignita  della  Republica,"  by 
Vida,  345. 

Diodorus  Siculus,  408,  409,  642. 

"Diritto  del  Ritenzione,  II,"  by 
Guarracino.  537. 

"Diritti  dell'  Uomo,  I,"  by 
Spedalieri,  358. 

"Diritto  di  Proprieta  nella  Dot- 
trina  di  Kant,"  by  Tullio, 
387. 

"Diritto  Naturale,"  by  Ulrici,  240. 

"Diritto  Universale,"  by  Vico,  41. 

"Dissertations  on  Early  Law  and 
Customs,"  by  Sumner 
Maine,  125,  208,  657. 


"Di    Una    Nuova    Teorica    della 
Personalita  Giuridica,"    by 
Bonelli,  380. 
Divorce  (§  469),  699. 

and  the  Catholic  Church,  his- 
tory of  (§  472),  706. 
by  consent  (§  475),  710. 
causes  for,  adultery   (§  473), 

708. 

excesses,   cruelties   and   in- 
dignities (§  474),  709. 
a  necessity  (§470),  701. 
evils  of  (§471),  704. 
precautions  (§  476),  711. 
"Doctrina       Pandectarum,"      by 

Mtihlenbruch,  547. 
Donnellus,  305. 

"Dottrina  delle  Persone  Giuridiche, 
o  Corpi  Morali,  La,"  by 
Giorgi,  375. 

Dos,  history  of  (§  465),  693. 
Dowry  (dos),  history  of   (§  465), 

693. 

Drobisch,  160,  189,  190. 
"Due  Matrimonii,  I,"  by  Gabba, 

677. 

Dueling  (§  186).  334. 
Dunoyer,  478. 
DunsScotus,  11. 
Duress  (§  367),  577. 

extent  of  (§  370),  580. 
Duties,  correlation  of  rights  and 

(§  193),  341. 

relative  and  absolute   rights 
(§  173),  322. 

Eckstein,  D',  636. 
"Economia  Pubblica  e    delle    sue 
Attinenze  colla  Morale  e  con 
il  Diritto,  Dell',"  by  Min- 
ghetti,  284. 

Economic  duress  (§  380),  591. 
Economics,  condition  not  cause  of 

society  (§  146),  282. 
biological  (§143),  276. 
have  ethical  content  (§  141), 

272. 

historical  (§  145),  281. 
were  considered  without  ethi- 
cal content  (§  140),  271. 


INDEX 


779 


[The  numbers  refer  to  the  pages.] 


Economics — (continued) . 

the  beginning  of  the  study  of 

(§  136),  267. 

Ahrens's  theory  of  ( §  138) ,  269. 
early  German  philosophers  of, 

are  forgotten  (§  137),  268. 
Hegel's  theory  of  (§  139),  269. 
and  biology  (§  144),  278. 
"Economics,"    by   Aristotle,    276, 

401. 

Edicts,  208. 
Egidio  Colonna,  8. 
"Einleitung  in    die    Studien    der 
Ethnologische         Jurispru- 
denz,"  by  Post,  109. 
Eleatic  philosophers,  1 
"Elementa  Juris  Naturae  et  Gen- 
tium," by  Heinnecius,  406. 
"Elementa    Jurisprudentiaa    Uni- 
versalis,"  by  Puffendorf,  246. 
"Elementi      di      Economia,"      by 

Cossa,  441. 
"Elementi  di  Politica  Economia," 

by  Beccaria,  462. 
Empedocles,  1. 
Emphyteusis  (§  335),  531. 
Employer's  liability  (§  381),  592. 
and       obligatory       insurance 

(§  384),  596. 
burden   of   proof,   shifting  of 

(§  382),  593. 
laws  should   be  preventative 

and  remedial  (§  385),  597. 
not  contractual  (§  383),  595. 
"Enciclopedia     Juridica,"     article 

by  Del-Guidier.  201.  518. 
"Enciclopedia  Juridica,"  article  by 

Filomusi-Gueln,  388. 
"Encyclopadia    der    Staatswissen- 

schaft,"  by  Mohl,  287. 
"Encyclopedic   der  Rechtswissen- 
schaft,"   article    by   Bruns, 
306. 

"Encyclopadie  der  Rechtswissen- 
schaft,"    article    by    Pepere, 

313. 
"Encyklopadie"    of    Holtzendorff, 

article  by  Bruns,  364. 
Engels,  684. 
Ennius,  112. 


Endogamy  and  exogamy  (§  434), 

650. 

"Entwicklunggeschichte  des  Romi- 
schen  Rechts,"  by  Ihering, 
365. 
Environment  and  heredity  (§  54). 

See  Heredity. 
Epicureanism,  2,  4. 
Epicurus,  214,  240,  347,  350. 
Epithadeus,  733. 
Esidemus,  133. 
"Esperienza  e  Metafisica,"  by  Spa- 

venta,  172. 

"Esprit  des  Lois,  L',"  by  Mon- 
tesquieu, 386. 

"Ethica  More  Geometrica  Demon- 
strata,"  by  Spinoza,  211. 
"Ethik,"  by  Seydel,  196. 
Ethics,  a  social  science  (§128).  255. 

Kantian  (§  112),  232. 
Eudoxus,  214. 

Evolution,    Laws    of,    show    the 
course   of    development    of 
law  (§  89),  200. 
historical  review  of  the  theo- 
ries of  (§62),  155. 
mechanical  (§57),  146. 
not  mathematical  (§  56),  144. 
not  explained   by   mechanics 

(§60),  152. 
of  social  organization  as  yet 

inexplicable  (§  61),  153. 
Spencer's  (§  106),  220. 
Spencer's,  Criticism  of  (§§  55, 

107),  143,  222. 
Exogamy  and  endogamy  (§  434), 

650. 
Experimental  method  possible  in 

physiology  (§24),  106. 
possible  in  the  political  sci- 
ences (§  25),  106. 
"Exposition    de    la    Theorie    des 
Chances  et  des   Probabili- 
tes,"  by  Cournot.  191. 

Family,  the  first  unit  of  law  (§  43). 
128. 

development  of  (§  440),  659. 

elementary  form  among  ani- 
mals (§419),  63. 


780 


INDEX 


[The  numbers  refer  to  the  pages.] 


Family —  (continued) . 

evolution      tends     to      indi- 

vidualization  (§  441),  660. 
former  view  of  origin  (§  420), 

635. 
maternal     precedes     paternal 

(§  423).  636. 
modern  view  of  origin  (§421), 

635. 

paternal    and    conjugal    rela- 
tions (§  444),  667. 
primitive,    the    prototype    of 

the  state  (§  418),  63. 
Vice's  history  of  (§424),  637. 
Vice's  history  reviewed  (§  425) 

639. 

Family  and  society  (§  443),  664. 
Farinacius,  61. 
Felice,  33. 
Feudal   system  —  origin    (§   258), 

423. 

Feuerbach,  494. 
Ferraris,  597. 
Fichte,  52,  60,  229,  236,  241,  298, 

388,  389,  518,  699. 
Ficino,  14. 
Filangieri,  17,  61. 
Filomusi-Guelfi,  297,  298, 388.  541. 
"Filosofica  del  Diritto,"  by  Ros- 

mini,  97. 
"Filosofia  e   da  Scuola,   La,"   by 

Anguilli,  91,  141,  168. 
"Filosofia  della  Politica,"  by  Ros- 

mini,  288. 

"First  Principles,"  by  Spencer.  139. 
Fischella,  375. 
Florentine  Academy,  14. 
Florentinus,  128,  180,  193,  346. 
Followers  of  Vico  and   the   His- 
torico-Comparative  method 
(§28),  107. 

Forests,  advantages  of  (§  279),  460. 
control  conservative  (§  283), 

463. 

not  land  (§  278),  460. 
public  control  (§  280),  461. 
public  control    bad,  but   un- 
avoidable (§  282),  462. 
public    control    necessary    at 
present  time  (§  281),  461. 


Forests —  (continued) . 

public  control  based  on  physi- 
cal harm  entails  no  indem- 
nity (§  286),  469. 
public  control,  not  industrial 

(§  285),  467. 
public  control  presents  many 

difficulties  (§  284),  465. 
public  control,  Italian  authori- 
ties (§  284),  465. 

"Forme  Primitive  nell  Evoluzi- 
one  Economica,"  by  De 
Martiis,  516. 

"Fragments  de  Philosophic  Posi- 
tive et  de  Sociologie  Con- 
temporaine,"  by  Littre,  258. 

"Frau  und  der  Socialismus,  Die," 
by  Bebel,  683. 

Fraud  and  mistake  (§  366),  576. 

Freedom  of  trade  (§  322),  513. 

Freedom,  individual,  struggle  for 
(§  204),  354. 

Fulfillment,  566. 

"Fundamenta    Juris    Naturae     et 
Gentium,"  by  Thomasius,  246. 

Fusinato,  594. 

Gabba,  314,  315,  316,  677,  743. 
Gaius,  94,  112,  207,  208,  209,  346, 

736,  737. 

Galiani,  61,  497,  508. 
Galileo,  56,  89,  114,  505. 
Gallupi,  71,  157. 
Cans,  547,  548,  764. 
Garati,  22. 
Gassenti,  37. 
Gaudenzi,  110. 
Gay-Lussac,  467,  468. 
Genovesi,  50,  60,  219,  358. 
Gentile,  22. 

George,  Henry,  443  et  seq.,  458. 
"Geschichte  des  Romischen  Rechts 

im  Mittelalte,"  by  Savigny, 

363. 
"Geschichte   und    der  System  der 

Rechtsphilosophie  in  Grund- 

ziigen,"  by  Geyer,  239. 
Geyer,  239. 
Gianturco,  591. 
Gioberti,  71.  309. 
Gioja,  276. 


INDEX 


781 


[The  numbers  refer  to  the  pages.] 


Giorgi,  375,  376,  377,  379,  381. 

Girard-Teulon,  637,  640,  656. 

Girardi,  332. 

Giudice,  Del,  201,  489,  518. 

Gneist,  292. 

Golden  Age,  difference  in  the  be- 
liefs of  the  jurisconsults  and 
physiocrats  (§  199),  346. 
impossible  (§  201),  348. 
jurisconsults'  belief  in  (§  198), 
345. 

Gorgias,  348. 

"Graeco-Italische  Rechtsgesch- 
ichte,"  by  Leist,  302. 

Gravina,  10,  744. 

Greef,  De,  98. 

Greek  speculation,  1. 

Grimm,  166. 

Grote,  302. 

Grotius,  17,  22,  33,  39,  95,  107, 
134,  240,  246,  248,  267,  297, 
332,  357,  385,  550,  552,  698, 
742. 

"Grundlage  des  Naturrechts,"  by 
Fichte,  236. 

"Grundlinien  der  Philosophia  des 
Rechts,"  by  Hegel,  96,  269. 

Guardianship  (§  482),  718. 
creation  of  (§  484),  729. 
history  of  (§  482),  719. 

Guicciardini,  13,  537. 

Gumplowicz,  283. 

Habit  (§58),  148. 

Ha  Her,  62. 

"Handbuch      des      Franzosischen 

Civilrechts,"   by    Zacharia, 

547. 
"Handbuch  des  Romischen  Alter- 

tumer,  by  Lange,  406. 
Hartley,  37,  158. 
Hegel,  66,  96,  155,  156,  175.  240, 

248,  255,  268,  269,  270,  292, 

298,  320,  351,  361,  370,  383, 

518,  668,  699,  744. 
Heinnecius,  406,  567. 
Helmholtz,  137,  171. 
Helvetius,  38. 
Hemmings,  297. 
Heraclitus,  1. 
Herbart,  74, 158,  210, 229,  237,  241. 


Heredity  (§59),  150. 

Heredity  and  environment  (§  54), 
142. 

Hermann,  626. 

Herodotus,  650. 

Heroic  age.  The  (§  41),  127. 

Hippias  of  Elis,  347,  348. 

Historical  school,  62,  63. 

Historico-comparative  method  and 
the  followers  of  Vico  (§28), 
109. 

"History  of  Civilization  in  Eng- 
land," by  Buckle,  253. 

Hobbes,  25,  210,  214,  240,  297,  343, 
350,  386. 

Holbach,  37. 

Holtendorff,  287. 

Homer,  112,  301. 

Horace,  346. 

Human  age,  The  (§  42),  127. 

Humboldt,  464,  467. 

Hume,  27,  36,  38,  158,  167. 

Hutcheson,  38. 

Huxley,  681. 

"Ideale    del   Mondo    Greco,"    by 

Florentinus,  128. 

Ihering,  98,  110,  199,  241,  365,  372, 
377,  379,  384,  546,  547,  550. 
551,  552,  555,  616,  617. 
Illegitimates,  status  of  (§  488),  724. 
Incorporation  (§  221),  374. 

does   not    affect    question    of 

reality  (§  221),  375. 
Incorporeal    persons,    fictional    or 
real  (§  209),  361. 

and  rights  (§  211),  363. 

and  rights,  Ihering's  theory 
(§  215),  364. 

different  theories  (§  210),  361. 

existent  (§  217),  369. 

non-existence  a  logical  impos- 
sibility (§  212).  363. 

Giorgi's  theory  members  can- 
not be  subject  of  rights,  224, 
377. 

Giorgi  theory,  basis  of  criti- 
cism (§226),  380. 

Giorgi's  theory,  criticism 
(§  225)  379. 


782 


INDEX 


[The  numbers  refer  to  the  pages.] 


Incorporeal  persons — (continued). 
the     "Quid     Simile"     theory 

(§  213),  364. 
rights     without     a     subject 

(§  215),  366. 
will  (§218),  370. 
wealth  cannot   be  subjective 

(§  216),  368. 

Individualism  and  the  feudal  sys- 
tem (§  257),  421. 
Individualism  —  modern   (§   260), 

427. 

"Individualismo    ed    il    Socialism 
nel     Diritto    Contrattuale, 
L',"  by  Giantureo,  591. 
Individuality     and      Christianity 

(§  256).  420. 

Induction,  Duty  of  (§  32),  115. 
four  methods  (§  23),  105. 
in  the  critic  of  law  (§27),  105. 
statistical  and    mathematical 

(§30),  112. 
"Infortuni    del  Lavoro,    Gl',"   by 

Fusinato,  594. 
Ingram,  276. 

Inheritance,  factors  (§  517),  773. 
affects    all    relations    of   life 

(§492)  ,732. 
among  the  ancients    (§  493), 

733. 

Instinct  (§  77),  179. 
"Institutes"  245,  298,  345,  346. 
Insurance,    more    economic    than 

ethical  (§  416),  630. 
fraud  (§  417),  631 . 
rates  are  calculable   (§  415), 

629. 
Insurance  and  socialism  (§  413), 

620. 
socialistic  view,   criticism    of 

(§  414),  628. 

Interest  is  legitimate  (§  386),  597. 
abrogation  of  legal  maximum 

(§  390).  601. 

is  economic  (§  391),  602 
is  legal  (§  388),  699. 
recognition  of  (§  387),  599. 
Intestacy,  founded  on  family  co- 
ownership  (§  498),  745. 
husband  and  wife  (§  504),  754. 
incapacities  (§  501),  751. 


Intestacy —  (continued) . 

kinds    of    succession  (§  502), 

752. 

natural  relative  (§  503),  754. 
the   state    the    ultimate    heir 

(§  505),  755. 
and   testacy   co-existing,    the 

reserve  (§  509),  758. 
succession  (§  500),  751. 
the  reserve,  extent  of  (§  511), 

762. 
the  reserve,  criticism  of  (§  510) 

760. 
transmission        (transmuttio) , 

Succession  per  stirpes    and 

per  capita  (§  506),  755. 
"Intrapresa     delle     Assicurazioni, 

L',"  by  Zammarano,  629. 
Ionic  philosophers,  1. 

Jacobi,  79. 

Jamblichus,  408. 

Jesuits,  13. 

Jurisprudence,  distinct  from  cus- 
tom (§  161),  305. 
industrial  (§  305),  491. 
industrial,  divisions  of  (§  306), 
491. 

Juristic  man.    See  Man. 

"Jus  Naturae  Methodo  Scienfico 
Tractatum,"  by  Wolff,  267. 

"Justice,"  by  Spencer,  224,  226, 
258,  662. 

Justinian,  207,  208,  475,  726,  757, 
766. 

Kant,  46,  95,  97,  137,  163,  168, 
180,  191,  210,  228,  229.  el 
seq.,238,  241,246,  251,  267, 
269,  298,  357,  367,  384,  386, 
387,  388,  391,  549,  584,  586, 
668,  697,  742. 

"Kant  e  rEmpirismo,"  by  Spa- 
venta,  139. 

"Kapital,  Das,"  by  Marx,  440,  497. 

Kerbaker,  121. 

Knowledge  is  a  priori  (§74),  174. 
criticism  of  positivist  theory 

of  (§72),  171. 
is  subjective  (§73).  172. 

Krause,  78,  98,  241,  289. 


INDEX 


783 


[The  numbers  ref 

"Kritikder  Praktischen  Vernunft," 

by  Kant,  47,  230. 
"Kritik  der  Reinen  Vernunft,"  by 

Kant,  47,  230. 
"Kritische  Zeitschrift  fur  Rechts- 

wissenschaft,"  by   Bluhme, 

305. 

Laband,  203. 

Labeo,  112,  300,  475. 

Labor  is  a  merchandise  (§  298),  482. 

price  of  (§  299),  483. 
Lactantius,  7. 
Lafitan,  636,  637. 
Lametrie,  37,  50. 
Lampertico,  154,  442. 
Lampredi,  20,  36,  219.  742. 
Land.  See  Property. 
Lange,  406. 
Lassalle,  314,  315,  316,  484,  493, 

494,  744. 

Lasson,  370.  375.  377. 
Laveleye,  389,  405,  407,  507. 
Law,  Definitions  of  (§98).  210. 
a  part  of  sociotogy  (§  134),  264. 
an  ethical  principle   (§   118), 

240. 
both    abstract    and    relative 

(§  21),  104. 
civil  and  commercial  (§  94), 

205. 
clear,  precise,  and  indubitable 

(§  164),  310. 
coercive      and       harmonious 

(§  87),  197. 
commercial,  history  of  (§  324), 

515. 
criticism  of  Mill's  utilitarian, 

definition  of  (§  103),  216. 
definitions     of     Krause     and 

Ahrens  (§  117),  239. 
developed  inductively  and  de- 
ductively (§  22),  104. 
difference    and    similarity    of 
rational    and    positive    law 
(§  ID,  94. 
difference     between     positive 

and  rational  (§152),  295. 
distinction     between     private 
and  public  (§  90),  201. 


'er  to  the  pages.) 

Law —  (continued) . 

economic  (§  147),  284. 

Fichte's  definition  of  (§  115), 
236. 

Herbart's  definition  (§  116), 
237. 

Hobbes'  definition  of  (§  99), 
210. 

increase  in  field  of  (§  127), 
253. 

in  physiological  a  nd  historical 
(§33),  117. 

in  relation  to  space  (§  166), 
313. 

in  relation  to  time  (§  617), 
314. 

international  (§96),  206. 

is  historical  (§92).  203. 

Kant's  definition  (§  111),  229. 

Kant's  idea  of,  is  abstract 
(§  114),  234. 

must  consider  the  social  rela- 
tions (§  16),  99. 

natural  and  positive,  Greek 
belief  in  connection  of  the 
(§200),  347. 

origin  of  different  kinds 
(§154),  297. 

positive,  is  mandatory  and 
inhibitive  (§86),  195. 

positive,  sources  of,  first,  cus- 
tom (§  157),  300. 

positive,  sources  of,  second, 
learned  research  (§  160). 
304. 

positive,  sources  of,  third, 
statutes  (§  162),  307. 

positive,  is  allied  with,  morals, 
the  social  sciences,  eco- 
nomics, and  politics  (§119), 
242. 

private,  five  categories  of 
(§  93),  205. 

public  (§  95),  205. 

rational  a  nd  positive  com- 
pared (§  155),  298. 

rational  and  positive.  Dis- 
tinction of  the  positivists 
(§  156),  299. 

rational,  belief  in  (§  153),  296. 


7S4 


INDEX 


Law — (continued) . 

retroactivity,      compensation 

(§  169),  317. 
retroactivity,    false    rules    of 

(§  168),  316. 
retroactivity,  crimes   (§  169), 

317. 
Rousseau's       definition        of 

(§101),  213. 
Spinoza's  definition  of  (§  100), 

211. 
subject  to  evolution    (§   88), 

199. 

tridivision  of  Gaius  and  Jus- 
tinian (§97),  207. 
utilitarian  definition  of  (§  102) 

214. 
Law  and  morals.    See  Morals  and 

Law. 

Lazzarus,  258. 
Le  Clerc,  34. 
"Lectures  on  the  Early  History  of 

Institutions,"     by      Maine 

657. 
Legacy,  acceptance  of  (§  515),  771. 

vesting  of  (§  514),  770. 
Legitimation  (§  491),  730. 
"Legge  del  piu  Forte,  La,"  by  Spa- 

venta,  152. 
"Lehrbuch    der    Deutsche  Straf- 

rechts,"  by  Berner,  330. 
"Lehrbuch  der  Institutes  des  Rom- 

ischen  Rechts,"  by  Marez- 

zol,  305. 
"Lehrbuch    des    Pandekten,"    by 

Windcheid,  366. 
"Lehren   vom    Zufall,    Die,"    by 

Windelband,  184. 
"Lehre    vom     Unternen     Staats, 

Die,"  by  Bluntschli,287. 
Leibnitz,   28,   30,    155,   229,   246, 

311.  744,  749,  750. 
Leist,  302. 
Lentulus,  L,  300. 
Letourneau,  258,  637. 
"Leviathan,"  by  Hobbes,  210. 
Lewes,  170. 
"Lezioni  di  Filosofia,"  by  Floren- 

tinus,  180,  193. 
"Lezioni    di    Storia    Antica,"    by 

Boughi,  647. 


[The  numbers  refer  to  the  pages.] 

"Liberte  du  Travail,  De  la,"  by 


Dunoyer,  478. 
Liens  (§33 9),  537. 
Lille,  468.   ' 

Lignano,  Giovanni  di,  22. 
"Limiti    della     Proprieta,    I,"    by 

Cocchia,  391. 
"Lingua  e  Diritto,"  by  Gaudenzi, 

110. 

Littre,  257,  258. 
Livy,  44. 
Locke,  25,  50,  163,  167,  229,  343, 

386,  497. 

"Logic,"  by  Bain,  25. 
"Logic,"  by  Stuart  Mill,  115. 
Lomonaco,  394. 
Loiia,  98,  283,  450,  el  seq. 
Lotze,  138,  158. 
Love —  a  late  development  (§  429) , 

644. 
origin     of      family      relation 

(§442),  662. 

Lubbock.  126,  258,  636,  652,  739. 
Luca,  De,  743. 
Lucci,  530. 

Lucretius,  133,  346,  637,  640. 
Lully,  Raymond,  11. 
Lupo,  22." 
Luther,  13. 
Lycurgus,  112,  407. 

McLennan,  636,  640,  652,  684,  740. 

Mably,  743. 

Macchiavelli,  13,  44. 

"Mahabharata,"  650. 

Maine,  102,  109,  110,  125,  208,  301. 

302,303,308,359,404,423, 

429,  569,  659,  735,  740. 
Maistre,  62. 
"Maladies  de  la  Personalite,"  by 

Ribot,  182. 
Malebranche,  28. 
Malthus,  61,  149,  278,  280,  396, 

444. 
Man,  an  organic  spiritual  subject 

(§  48),  135. 
individual  and  social    (§91), 

202. 
juristic,  the  subject  of  rights 

and  du  ties  (§  170).  3 19. 


INDEX 


785 


[The  numbers  refer  to  the  pages.] 


Man — (continued) . 

juristic,       two      prerequisites 

(§  172),  321. 

the  origin  of  economic  rela- 
tions (§  276),  453. 
"Man  versus  the  State,  The,"  by 

Spencer,  299. 

Manu  and  Nerada,  208,  715. 
Marezoll,  306. 
Marghieri,  624. 

Marius  Paganus.    See  Paganus. 
Marriage  (§  445),  668. 

a  spiritual,  mental,  and  physi- 
cal union  (§446),  669. 
annulment  (§  451),  672. 
between  relatives  (§  448),  674. 
civil  and  indissoluble  (§  468), 

697. 
conditions    and    impediments 

(§  447),  670. 
ethical,  religious,  and  juridical 

(§453),  674. 
husband  must  have  authority 

(§  458),  682. 

impediment  of  attempted  mur- 
der (§  450),  672. 
indissolubility  (§  446),  696. 
indissolubility,  demanded  by 
morality,  religion,  and  poli- 
tics (§  467),  696. 
property  (§  463),  692. 
property,  history  of  (§  464), 

693. 

state  control  of  (§454),  675. 
Marriage  and  adoption  (§449),  672. 
Marsh,  464,  468. 
Marsilius,  8. 
Martial,  132. 

Martiis,  Cognetti  de,  276,  516. 
Marx,  Karl  (§  311),  98,  283,  440, 
458,  493,  494,  495,  497,  507, 
508,  509,  510. 

Masci,  145,  148,  164,  181,  187. 
Materialism,  Bacon's  (§  49),  135. 
the  result   of  illegitimate  de- 
duction (§50),  136. 
psychological     and     physical 

(§  51),  137. 

Maternal  and  paternal  genealogy 
(§  435),  653. 


Matriarchy  (§  432),  648. 

inheritance  (§  433),  650. 
Melanchthon,  14,  297. 
Menger,  590. 
Mengotti,  463,  465. 
Merlo,  123. 

Messedaglia,  279,  466,  468. 
Metaphysics  and  necessity   (§  5), 

90. 
"Metaphysische  Aufangrunde  der 

Rechslehre,"  by  Kant,  95. 
Mill,  106,  107,  115,  138,  160,  214, 
216,  222,  240,  254,  262,  386, 
680,  681. 
Milone,  543. 

Mind,  attributes  of  (§  76),  175. 
Mines    not  land   (§    278),   460. 
economics      favor      freedom 

(§  295),  478. 

history  of  law  of  (§  289),  471. 
no  title  by  accession  (§291), 

474. 
objection      to      emancipation 

(§290).  471. 
special  conditions  special  laws 

(§  287),  470. 

title  by  "fictiones"  (§292),  474. 
Minghetti,  284,  285,  286. 
Mirabeau,  743. 
Mistake  (§  366),  576. 
Modern  philosophy,  19. 

character  of,  as  foreshadowed 

by  Vico  (§7).  92. 
Modestinus,  195. 
Mohl,  286.  292. 
Molineo.  559,  560. 
Molitor,  547. 
Mommsen,  406,  409. 
Monad,  Spirit  as  (§63),  157. 
Monogamy,  development  from  pro- 
miscuity (§  430),  646. 
development  from   promiscu- 
ity.   Sandwich    Islands   ex- 
amples (§431),  647. 
Montesquieu,  17,  26,  27,  62,  309, 

386. 
"Moral  Statistik,"  by  Oettingen, 

190. 

"Moralische  Statistik  und  die  Men- 
schlicheWillensfreiheit,  Die," 
by  Drobisch,  189. 


786 


INDEX 


[The  numbers  refer  to  the  pages.] 


"Morale  dei   Positivisti,"   by  Ar- 

digo,  265. 
Morals,     Kantian,     are     abstract 

(§  113),  233. 
Morals    and    law    originally    one 

(§  120),  242. 
confusion  and  separation  both 

wrong  (§  123),  247. 
difference  not  understood  by 

Rosmini  (§  125),  251. 
distinguished  by  the  Romans 

(§  121),  243. 
distinction      disappeared      in 

Middle  Ages  (§122),  245. 
part  of  ethics  (§  85),  194. 
separation  and  contradiction 

(§124),  249. 
Morgan,  636,  640,  684. 
Morianus,  245. 
Mortgage  (§  336),  533. 
Motive  (§  82),  185. 
Miihlenbruch,  547. 
Miiller,  166. 
Mute  ages,  The  (§  39),  124. 

Natural  goodness  of  man  (§  196), 
343. 

Naturalism,  12. 

"Naturrecht  auf  den  Grunde  der 
Ethik,"  by  Trendelenburg, 
96. 

Nemour,  Dupont  de,  257. 

Neo-criticism,  85. 

Neo-platonism,  3,  4,  7,  17. 

Nicholas  of  Cusa,  11. 

Niebuhr,  406.  542. 

Nifo.  276. 

Notes,  promissory  (§  411),  613. 

Noumenon,  knowable  through  phe- 
nomenon (§  75),  175. 

"Nova  Methodus  Discendae  Juris- 
prudentiae,"  by  Leibnitz, 
246. 

Novation,  564. 

Obligation,   definition   of    (§  350), 

553. 
division    in    re    subject    and 

object  (§  354),  5 58. 
extinguishment  (§  358),  563. 
in  civil  and  natural  law  (§  357) 

562. 


Obligation — (continued) . 

prerequisites  (§  351),  554. 
sources  (§  352),  556. 
sounding  in  tort  (§  353),  557. 
subdivision  qua  object  (§  355). 

559. 
vincula  (§356).  560. 

Occam,  10. 

Oettingen,  190,  257. 

Offer  and  acceptance  (§  365),  574. 

Olendorp,  14,  297. 

Opilius,  112. 

Orbilius,  112. 

"Origin  of  Civilization  and  the 
Primitive  Condition  of  Man, 
The,"  by  Lubbock,126,  636. 

"Origin  of  Consanguinity  and 
Primitive  Conditions  of  Ma- 
trimony," by  McLennan, 
636. 

Origin  of  mind,  according  to  the 
positivists  (§  69).  168. 

"Origines  du  Marriage  et  de  la 
Famille,  Les,"  by  Girard- 
Teulon.  637. 

Ownership.   See  Property. 

Paganus,  44. 
Palazzo,  23. 
Pandects,  298. 
Pantaleoni,  302,  406. 
Papinianus,  369,  742. 
Parallelism  in  the  development  of 
language  and  law  (§29),  110. 
Parental  relation,  a  derivative  of 

the  conjugal  (§  477),  712. 
fundamental  (§  478),  712. 
Rosmini's  theory  (§  479),  714. 
Partnership,    three   kinds   (§  401). 

614. 

authorization  (§  407),  620. 
not  legal  entities  (§  403),  615. 
publicity  and  personal  liabil- 
ity (§  409),  622. 
subdivisions  of  (§  402),  615. 
supervision  (§408),  621. 
Patents  (§  328),  522. 
Paternity,     symbolic     recognition 

(§  438),  656. 

a     derivative      of      property 
(§437),  655. 


INDEX 


787 


[The  numbers  to  refer  the  pages] 


Paternity — (continued) . 

inquiry  into  (§  489),  727. 
proof  of  (§  490),. 729. 
Patria  potestas  (§  480),  715. 

enjoyed    by   mother    (§  481) , 

717. 

Patriarchy  (§  439),  657. 
Patristicism,  10. 
Patterson,  565. 
Payment,  563. 
Pelgrave,  565. 
Pepere,  313. 
Per  capita,  755. 
Per  stirpes,  755. 
Person,   the  origin  and  source  of 

rights  (§  177),  325. 
Personality  —  reinstated     at     the 

reformation  (§  259),  425. 
Peter  of  Andlo,  8. 
"Peuples    Semitiques   dans   1'His- 

toire  de  la  Civilisation,  De 

le  Part  des,"  by  Renan,  119. 
"Phanomenologie  des  Geistes,"  by 

Hegel,  351,  352. 
Pherecrates,  348. 
"Philosophic  des  Rechts  nach  Ge- 

schichtliche    Ansicht,"      by 

Stahl,  305. 
Philosophy  a  part  of  every  science 

(§  3),  88. 
depends    upon    the    sciences 

(§  4),  89. 
Philosophy  and  the  sciences  (§  1), 

87. 
Philosophy    of    law,     Distinction 

from  sciences  of  legislation 

(§20),  102. 

Philosophy  of  law,  The  (§  6),  91. 
not  based  on  a  priori  princi- 
ples (§  12),  95. 

Philosophy.  Roman  (§46),  132. 
of  the  Middle  Ages,  7. 
later  (§47),  134. 
Pindar.  112. 
Pisanelli,  723. 
Plato,  2,   14,   109,   110,   112,   114, 

131,  240,  243,  285,  286,  306, 

307,516,667,  668.714,741. 
Plautus,  112. 

Pledge  and  mortgage  (§  336),  533. 
Pliny,  276. 


Plotinus,  5. 

Plutarch,  44,  407. 

Politics,  a  practical  social  science 

(§  119),  287. 
ethical  (§  142),  274. 
definition  of  (§  148),  286. 
moral  (§150),  289. 
Politics  and  statemanship  (§  151), 

291. 

Polyandry  (§  436),  654. 
Polybius,  13,  44,  541. 
Pomponazzi,  14. 
Pomponius,  565. 
Porphyry,  408. 

Positivists,  wrong  in  denying  spe- 
cial philosophers  (§  19),  101. 
Possession,  not  property  (§  340), 

539. 

a  right  (§  341),  539. 
absolute  theories  (§  346),  547, 
criticism  of  theories   (§  347). 

548. 

history  of  (§  342),  541. 
fictional  (§  348),  550. 
in  modern  law  (§  344),  544. 
in  rational  law  (§  345),  546. 
in  Roman  law  (§  343),  543. 
intent    is    necessary    (§  349), 

550. 

"Possesso,  II,"  by  Ruggieri,  550. 
"Possesso  delle  Cose  e  dei  Diritti," 

by  Milone,  543. 
Post,  109. 
Pothier,  560. 
Praxiphanes,  112. 
Prescription  (§  240),  399,  566. 
"Prime  Linee  di   un   Programma 
critico    di    Sociologia,"    by 
Vanni,  261. 
"Primi  del  Diritto  Romano,"  by 

Capuanus,  244. 

"Primitive  Culture,"  by  Tyler,  258. 
"Principe,"  by  Macchiavelli,  44. 
"Principi   di   Filosofia,"    by   Spa- 

venta,  352. 
"Principien  der  Politik,  Die,"  by 

Holtzendorff. 
"Principles  of  Political  Economy, 

The,"  by  Mill,  386. 
"Principles    of    Psychology,"    by 
Spencer,  139. 


788 


INDEX 


[The  numbers  refer  to  the  pages.] 


"Principles  of  Sociology,"  by  Spen- 
cer, 126,  257,  637. 
"Problema  della  Filosofia  del  Di- 

ritto,  II,"  by  Vanni,  100. 
Prodicus  of  Chios,  347. 
Profit,  a  rent  (§  307),  492. 
"Programma,"  by  Carrara,  335. 
"Progress  and  Poverty,"  by  Henry 

George,  443. 
Prometheus,  128. 
Promiscuity,    traces    in    marriage 

rites  (§428),  642. 

Promiscuity        and        monogamy 
(§430),  646. 

Sandwich      Island      example 

(§  431),  647. 

Property,    commercial,    definition 
of  (§  321),  512. 

accession  (§  238),  397. 

alteration  (§  239),  398. 

appropriation  (§237),  396. 

an  attribute  of  man  (§  244), 
402. 

ancient  family  communities 
(§  254),  415. 

and  abstract  man  (§  233),  390- 

and  equality  of  inherent  rights 
(§236),  395. 

and  philosophy  of  law  (§  242), 
400. 

and  practical  interest  (§  294), 
476. 

code  definitions  (§  234),  392. 

collective  ownership  disap- 
pears with  development  of 
work  (§  264).  433. 

common  ownership  of  land 
(§  250),  409. 

derivative  methods  of  acquisi- 
tion (§241),  399. 

disbelief  in  priority  of  collec- 
tive (§  255),  418. 

George's  theory  (§  270),  443. 

George's  theory,  criticised 
(§  271),  445. 

history  of,  Grotius  (§  230) ,  385. 

history  of,  Kant  (§  231),  386. 

history  of,  Fichte  (§  232),  388. 

industrial  (§  296),  480. 

in  capital  and  labor  (§320), 
510. 


Property — (continued) . 

in  Greece  (§  247),  406. 

in  labor  (§  300),  485. 

in  Rome  (§  248),  407. 

in  the  air  (§  293),  476. 

land  not  the  gift  of  God 
(§  272),  447. 

Loria's  theory  (§  273),  450. 

Loria's  conclusions  (§  274), 
451. 

Loria's  theory  criticised 
(§  275),  453. 

Loria's  theory,  a  contradic- 
tory (§  277),  455. 

modern  means  of  acquisition 
(§  263),  431. 

necessary  restrictions  (§  235), 
394. 

no  rational  distinction  be- 
tween land  and  goods 
(§  265).  433. 

origin  and  development 
(§  246),  404. 

original  methods  of  acquisi- 
tion (§237),  396. 

personalty  and  realty  (§  262), 
430. 

philosophy  of  (§  229),  384. 

prescription  (§  240),  399. 

primitive,  modern  traces  of 
(§  251),  410. 

primitive,  example  in  ancient 
Europe  (§  252),  411. 

primitive,  Polynesia  (§  253), 
413. 

primitive  means  of  acquisition 
(§261),  428. 

private  and  the  socialists 
(§308),  493. 

private  is  economic  (§  267), 
438. 

rent  (§  269),  440. 

rights  (§  228),  383. 

rights  of,  fundamental  basis 
(§22),  383. 

socialistic  communism  (§268), 
439. 

Spencer's  collectivism  (§  266), 
435. 

tendency  to  acquisition  an  in- 
stinct (§  243),  401. 


INDEX 


789 


[The  numbers  refer  to  the  pages.] 


"Proprieta,  La,"  by  Lampertico, 
439. 

"Proprieta  Collettiva  nell'  Apen- 
nino  Marchigiano,  La,"  by 
Valenti,  412. 

"Propriete  et  ses  Formes  Primi- 
tives, De  la,"  by  Laveleye, 
389,  405,  406. 

Protagoras,  348,  349. 

Protestantism,  13. 

Proudhon,  699, 700. 

Puchta,  301, 363, 406, 542,  547, 710. 

Puffendorf,  33,  95,  357,  617,  698, 
742,  743. 

Pythagoras,  130,  131,  285,  408. 

Pythagoreans,  1,  3,  114. 

Quesnay,  344. 
Quetelet,  189,  258. 
"Quintessenz  der  Socialismus, 

Die,"  by  Schaffle,  496. 
Quintilian,  741. 

Rae,  445,  493. 

Randa,  364,  547,  548. 

Rational  Law.    See  Law. 

Reactionary  period,  62. 

Realism,  8. 

"Realta  delle  Persone  Giuridiche, 

Sulla,"  by  Fisichella,  375. 
Reason,     a    result    of    evolution 

(§  110),  228. 

development  of  (§  202),  350. 
"Recht  des  Besitzes  in  Mittelal- 

ten  und  in  der  Gegenwart," 

by  Bruns,  542. 
"Recht  des  Besitzes,"  by  Savigny, 

540. 
"Recht  und  Verhaltnisse  von  Stand- 

punkte   in   Volkwartschaft- 

lich  Gutenlehre,"  by  Bohm- 

Bawerk,  284. 
Reclus,  465. 
Release,  564. 
"Reliquie  della   Proprieta   Collet- 

tiva  in  Italia,"  by  Venezia, 

412. 

Renaissance,  12,  19. 
Renan,  119. 
Renazzi,  61. 
Representation  (§67),  165. 


"Republica    delle    Api,    La,"    by 

Bonifazio,  345. 
Rescission,  564. 
Retroactivity.    See  Law. 
Ribot,  164,  182,  183. 
Ricardo,  447,  448,  486,  497,  498 

507,  508. 
Riehl,  171. 
Rights,  individual,  the  sujects  of 

(§  214),  365. 
absolute   and   relative   duties 

(§  173),  322. 
correlation     of     duties     and 

(§  193),  341. 

development  of  (§  178),  326. 
increase  with  man's  develop- 
ment (§  175),  324. 
inherent  and  acquired  (§  174), 

323. 

inherent  equality  of  and  prop- 
erty (§  236),  395. 
invention    and     discovery    is 

economic  (§  326),  519. 
member  of  corporation  (§  224) 

377. 
not  abstract,  but  components 

of  life  (§  206),  356. 
of  competition  (§323),  514. 
of  exemption  (§  323),  514. 
of    invention    and    discovery 

(§  325),  515. 
of    invention    is   a    property 

right  (§327),  520. 
of     invention     is     economic 

(§326),  519. 
of      property,      fundamental 

basis  (§  227),  383. 
personal  and  property  (§  329), 

523. 

subsidiary  inherent  (§179),327. 
subsidiary  inherent  in  struggle 

for  development  ( §  205) ,  355 . 
toaid(§  190),  339. 
to  associate  (§  189),  337. 
to  freedom  (§  187),  335. 
to   freedom   and    self-defense 

(§  183),  329. 
to    honor    and    good     name 

(§  185),  333. 
to  life  (§  180),  327. 
to  life,  suicide  (§  181),  328. 


790 


INDEX 


[The  numbers  refer  to  the  pages.] 


Rights — (continued) . 

to   work,    distinguished    from 

the  socialistic  right  to  work 

(§  192),  340. 

without  a  subject  (§  215),  366. 
Riviere,  Mercier  de  la,  257. 
Roberty,  De,  258. 
Robespierre,  743. 
Romagrosi,  56,  96,  98,  219,  248, 

267,  336,  337,  339, 370,  463, 

513,  528,  547. 
Roman  dogma,  1. 
Roman  philosophy,  5. 
"Romische        Geschichte,"        by 

Mommsen,  406. 
"Romische  Geschichte,"  by  Nieh- 

buhr,  542. 
Roscher,  499. 
Rosmini,  71,  72,  97,  103,  108,  158, 

160,  196,  198,  199,  233,  240, 

248,251,287,320,323,326, 

331,332,361,370,383,384, 

395,  430,  568,  581,  582,  692, 

699,  712,  714,  715,  724,  728, 

729,  747,  749,  750. 
Rossi,  271,  273,  394,  427. 
Rousseau,  39,  60,  210,  213,  241, 

298,  344,  357,  742. 
Rudorf,  547. 
Ruggieri,  550,  552. 
Rumelin,  113. 

"Saggi  sulla  Teoria  Sociologica  della 
Popolazione,"  by  Vanni,280. 

"Saggio  Intorno  ad  una  Quistione 
di  Diritto  Preistorico,"  by 
Pantaleoni,  302. 

St.  Augustine,  679. 

St.  Jerome,  679. 

Saint  Pierre,  37. 

St.  Thomas,  240,  297,  674. 

Salandra,  628. 

Salvioli,  590. 

Savigny,  63,  110,  305,  306,  312, 
317,362,363,370,371,540, 
541,  542,  546,  547,  548,  549, 
550. 

Savonarola,  13. 

Savoye-Rollin,  709. 

Say,  394. 

Scepticism,  2. 


Sceptics,  133. 

Schaffle,  258,  262,  496,  504,  505. 
Schelling,  63,  66,  80,  298,  370. 
Schliemann,  580. 
Schlossmann,  571,  572. 
Sciajola,  542. 
Scialoia,  286. 
Schleiermacher,  64. 
Scholasticism,  10,  12. 
Schopenhauer,  80,  518. 
"Science  au  Point  de  Vue  Philoso- 
phique,  La,"  by  Littre,  257. 
Sciences  make  for  unification  (§2), 

87. 
"Scienza  Nuova,"  41,  45,  92,  256, 

639,  640. 

Scotch  philosophers,  38. 
Selden,  34,  95,  357. 
Self-defense  (§183),  329. 
Self-defense,    limited    by    circum- 
stances (§  184),  330. 
Self-realization  (§  194),  343. 
Seneca,  243,  346,  679,  741. 
Sensus  abditus,  15. 
Sensus  additus,  15. 
Serafini,  547. 
Servitudes  (§  330),  524. 

derivatives  from  acts  (§  333), 

528. 

of  construction  (§  334),  530. 
personal  (§331),  524. 
predial  (§  332),  527. 
Seven  sages  and  the  early  sophists 

(§44),  129. 

Sex,  comparison  of  (§  456),  679. 
equality  of  the  (§  455),  678. 
equality  of  opportunity 

(§462),  690. 

inequality  of  (§  457),  680. 
socialistic  equality  of  (§  459), 

683. 
socialistic   equality  of,    based 

on  error  (§461),  687. 
socialistic   equality    of,    criti- 
cised (§  460),  685. 
Sextus  Empiricus,  108,  133. 
Seydel,  196. 
Shaftsbury,  38. 

"Sistema  del  Diritto  Civile  Ro- 
mano," by  De  Crescenzio, 
547. 


INDEX 


791 


[The  numbers  ref 

Smith,  Adam,  38,  269,  270,  344, 

386,  394,  497,  498,  507,  508. 
"Social  Statics,"  by  Spencer,  228, 

299,  435. 
Socialism  (§  309),  495. 

of  today  (§  310),  496. 

and  private  property  (§  308), 

493. 

and  insurance.   See  Insurance, 
and  progress  (§  310),  503. 
"Socialism  e  Contemporaine,"  by 

Laveleye,  507. 

Socialistic  equality  (§  188),  336. 
Societies,  cooperative  (§  405),  618. 

regulation  of  (§  406),  620. 
Society,  present  state  (§  315),  503. 
a  necessity  (§  171),  320. 
not  a  natural  organism  (§317), 

506-. 

Society  and  family  (§  443),  664. 
"Sociologia,"  by  Ardigo,  265. 
"Sociologie    L'apres    1'Ethnologie, 

La,"    by   Letourneau,   258, 

637. 
Sociology,    Beginning    of    (§  130), 

257. 
the  social  philosophy  (§  132), 

261. 
must    regard    the     aggregate 

and  the  units  (§  133),  263. 
more  than  a  philosophy  of  law 

(§  135),  265. 
Socrates,  2,  3,  104,  108,  132,  171, 

716. 
Socratic  philosophy  and  Aristotle 

(§  45),  131. 
Solon,  112,  407,  641. 
Sophists,  2,  347,  362. 
Sophists,  The  early  and  the  seven 

sages  (§44),  129. 
Spaventa,  71,  139,  152,  171,  172, 

177,  194,  352. 
Spedalieri,  53,  219,  358. 
Spencer,  100,   126,  141,  143,  155, 

158,  163,  176,  181,  182,  220, 

224,  226,  228,  240,  253,  254, 

258,  259,  262,  263,  279,  281, 

299,  336,  339,  435,  437,  637, 

652,  659,  681,  690,  691,  739. 
Spencer,    the    greatest    sociologist 

(§  131),  259. 


:r  to  the  pages.] 

Spencer's  unknowable  (§52),  139. 
Spinoza,  28,  191,  210,  211. 
Spirit  as  a  Monad  (§63),  157. 

indivisible,  quantitatively    or 

qualitatively  (§64),  158. 
and  the  senses  (§  65),  160. 
Stagirite.    See  Aristotle. 
Stahl,  63,  80,  305,  553,  744. 
State   and   its   evolution    (§  191), 

339. 
State  of  nature,  man's  powers  in 

(§  195),  343. 
traces     in     earliest     writings 

(§  197),  345. 

Italian    philosophers   are   op- 
posed to  (§  207),  358. 
Statistics,  need  of  (§  31),  114. 
Statistics  and  chance  (§  83),  188. 
Status,    confusion    with    contract 

(§  208),  359. 
Status,  not  mere  growths  (§  163), 

308. 

Stein,  292,  603,  606,  607,  608. 
Steinthal,  166,  258. 
Stoerk,  203. 
Stoicism,  2,  4. 
Stoics,  131,  133,  240,  245,  276,  323, 

714. 

Stoppani,  466. 
Straecha,  517. 
Strabo,  6£0. 
Stobo3us,  131. 
"Studi  sull'   Etica  di  Hegel,"  by 

Spaventa,  194. 
"Studii     di    Sumner    Maine    e    le 

Dottrine  della  Filosofia  del 

Diritto,  Gli,"  by  Vanni,  110. 
"Study    of    Sociology,    The,"    by 

Spencer,  259. 
Sub-human  justice  (§  108),  224. 

Criticism  of  (§  109),  226. 
Substitution,  564. 
Suessmilch,  257. 
Suicide  (§  181),  328. 

philosophical  relation  of  suicide 

and  law  (§  182),  329. 
SummumBonum  (§  84),  191. 
"System  of  Consanguinity  and 

Affinity,"  by  Morgan,  636. 
"System  der  Erworbenen  Rechts," 

by  Lassalle,  314. 


792 


INDEX 


[The  numbers  refer  to  the  pages.] 


"System  der  Finanzwissenschaft," 

by  Roscher,  499. 
"System  der  Heutigen  Romischen 

Rechts,"  by  Savigny,  301. 
"System   der   Oestreichischen   Al- 

meinen  Rechts,"  by  Unger, 

363. 
"System  der  Pandekten,"  by  Thi- 

baut,  541. 
"System    des    Romischen     Civil- 

rechts,"  Cans,  547. 

Tabula  rasa,  26,  149,  179. 

Tacitus,  419. 

"Temperament!     della     Proprieta 

Prediale,  I,"  by  Lomonaco, 

394. 
"Teoria  della   Retroactivita  delle 

Leggi,"  by  Gabba,  314. 
"Teorie  Sociali  dei  Sofisti  Greci, 

Sulla."  by  Chiappelli,  130. 
"Terra  e  la  Sistema  Sociale,  Le," 

by  Loria,  450. 
Testacy,    foundation    of    (§  497), 

741. 
and  ancestor  worship  (§  496), 

738. 
and  intestacy,  coexisting.  The 

reserve  (§  509),  758. 
founded  on  ownership  (§  499), 

748. 

no  representation  (§  512),  764. 
succession  (§  507),  756. 
Theophilus.  742. 
Theophrastus,  109. 
"Theorie    du    Code     Penal,"    by 

Chauveau  and  Helie,  334. 
Theory  that  the  useful,  just,  and 

honest  are  three  aspects  of 

the  good  (§  126),  252. 
Theosophy,  17. 
Thibaut,  63,  541. 
Thiers,  384. 
Thilo.  370. 

Thomas  Aquinas.    See  Aquinas. 
Thomasius,  34,  246,  698. 
Thornton,  339. 
Thought  (§  68),  166. 
Thrasimachus,  348,  349. 
Tocco,  184. 


"Tractatus  Theologico-Politicus," 
by  Spinoza,  211. 

Tracy,  37. 

"Traite  de  Legislation,"  by  Comte 
309. 

Transmission  (transmittio)  (§506), 
755. 

Transportation  (§  412),  615. 

"Treatise  on  Civil  Government," 
by  Locke,  386. 

Trendelenburg,  76,  96,  239,  240, 
263,  268,  270.  271,  310,  314, 
320,  325,  361,  370,  384,  547, 
585,  586,  673,  692,  699,  728. 

Tronchet.  743. 

Troplong,  617,  742. 

Tullio,  213,  387,  626. 

Turgot,  83,  344,  486,  513. 

Tyler,  258. 

Tyndall,  155. 

Ulpian,  112,  244,  300, 736, 737,  742. 
Ulrici,  240. 
Unger,  363. 

Unions,  basis  (§301),  486. 
history  of  (§  302),  487. 
legal  (§  303).  486. 
potentiality  of  harm  (§  304), 

489. 

Unus  homo,  nullus  homo,  77. 
"Ursprung  der  Familie,  des  Privat- 
eigenthums  und  des  Staats, 
Die,"  by  Engels,  684. 
Usury  (§  389),  600. 

a  debt  without  consideration 

(§398).  610. 

a  crime  against  private  prop- 
erty (§  399),  611. 
and  high  interest  (§  393) ,  605. 
ineradicable  by  law  (§  400),612. 
is  a  crime  (§  396).  607. 
its  abolition  (§  395),  605. 
methods  of  (§  392),  603. 
simple  and  seductive  (§  393), 

604. 

Stein  distinction  (§  397),  608. 
Utilitarianism,  the  material  of  law 

(§  104),  218. 
Maine's  criticism  of   (§  105), 

219. 
"Utilitarianism,"  by  Mill,  214. 


INDEX 


793 


Valenti,  412. 

Vanezian,  412. 

Vanni,  100,  110,  261,  261,  280,  299. 

Vanni's  Philosophy  of  Law  (§  18), 

100. 

Van  Wetter,  542,  543. 
Variation,    Dependent   on   stimuli 

(§  70),  169. 

Dependent    on    stimuli,    con- 
trary   to    modern    thought 
(§71),  170. 
Vattel,  36. 

Vedic  law  is  harmony  (§  38),  123. 
Veggasi,  369. 
Vergil,  346. 
Vessels  (§  338),  536. 
Vico,  41,  50,  57,  92,  93,  94,  96,  98, 
100,  104,  107,  110,  112,  117, 
118,  122,  126,  127.  147,  155, 
194,  199,219,224,240,241, 
242,  248,  256,  258,  265,  267, 
281,  289,  301,  302,  308,  309, 
320,  327,  337,  353,  357,  361, 
369,  410,  619,  637,  et  seq., 
640,  739. 
belief  in  a  social  science  (§  129) , 

255. 

believes  that  phenomena  are 

based  on  reason  (§17),  100. 

history  of  human  development 

(§203),  353. 

human  idea  of  law  proved  by 
historical  induction   (§  26), 
107. 
philosophy    is    historical    and 

not  abstract  (§  8),  92. 
philosophy  is  practical  (§9), 

93. 

showed  the  different  basis  of 
rational    and    positive    law 
(§  10).  94. 
theory     upheld     by    modern 

philosophers  (§  13),  96. 
theory,    that   of   the    positiv- 

ists  (§14),  97. 
theory  considers  the  influence 

of  economics  (§  15),  98. 
Vida,  Girolamo,  345. 
Vigliani,  724. 
Vinnio,  743. 


[The  numbers  refer  to  the  pages.] 

Viollet,  406. 

Virchow,  155. 

"Vita  del  Diritto,"  by  Carle,  252. 

Viti,  546. 

Vitruvius,  346. 

Vives,  14. 

Voconian  law,  679. 

Voet,  743. 

Volcraff,  109. 

Voltaire,  13. 

"Vom  Beruf  Unser  Zeit  fur  Gesetz- 
gebung  und  Rechtswissen- 
schaft,"  by  Savigny,  312. 

Von  Sybel,  509. 

"Vorlesungen    iiber    das     Heutige 


Romische        Recht," 
Puchta,  363. 


by 


Wagner,  113,  339,  434,  435. 

Warnkonig,  306. 

"Wealth    of    Nations,    The,"    by 

Adam  Smith,  344. 
Will  (§  79),  180. 

resultant  from  union  of  wills 

(§  218),  370. 
resultant,    a    higher    form    of 

evolution  (§  219),  371. 
Wills,  Roman  (§  494),  735. 

in  the  Middle  Ages   (§495), 

737. 

forms  of  (§508),  758. 
requisites  of  (§513),  766. 
Windelband,  184. 
Windscheid,    366,    367,    373,    378, 

540,  541,  555. 
Winkler,  14,  297. 
Wolff,  35,  50,  267,  311,  742. 
Wundt,  171. 

Xenophon,  516,  679. 

Zachariae,  430,  547. 
Zammarano,  630,  631. 
"Zeitschrift."  by  Warnkonig,  306. 
"Zeitschrift     fur     Volkerspsycho- 

logie     und     Sprachwiseen- 

schaft,"  258. 
Zeno,  132,  532. 
Zimmermann,  160. 
Zitelmann,  371,  378. 


